B (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

An Upper Tribunal judicial review claim begun in that tribunal cannot be transferred to the High Court merely because the parties agree that transfer would be convenient. No discretionary transfer power exists for such a claim under the Tribunals, Courts and Enforcement Act 2007 or the Tribunal Procedure Rules.

Where a proposed amendment or additional ground would take the claim outside the Upper Tribunal's judicial review jurisdiction, the tribunal may first permit it under rule 33A. The statutory duty to transfer then follows. The discretionary power to transfer back under rule 33A(3)(b) arises only for proceedings previously transferred from the High Court under section 31A(3) of the Senior Courts Act 1981.

The applicant, an Eritrean asylum seeker, brought judicial review proceedings in the Upper Tribunal concerning a proposed return to Malta under the Dublin arrangements. After permission had been granted, the parties signed a consent form seeking transfer to the High Court so that the applicant could seek to add a claim for a declaration of incompatibility.

The Upper Tribunal sealed the proposed consent order on 27 May 2015. The order contemplated transfer first and an application to amend only afterwards. A later order made no transfer, and the matter was heard before Mr Justice Walker to determine whether rule 33A authorised the earlier consent order.

The central issue was whether the Upper Tribunal could transfer a claim begun before it, without first permitting an amendment or additional ground that required transfer.

1. The purported transfer order was a nullity. The judicial review claim had been properly begun in the Upper Tribunal. The consent order neither amended the claim nor permitted any additional ground before directing transfer. It was therefore outside the tribunal's jurisdiction.

2. Section 18 of the Tribunals, Courts and Enforcement Act 2007 draws a bright line. Unless a case has been transferred from the High Court and benefits from section 19(3), the Upper Tribunal can exercise its judicial review functions only while all section 18 conditions remain satisfied. If they are not, section 18(3) requires transfer to the High Court.

3. Section 18(11) contemplates procedural rules allowing amendments which, once made, require transfer. Rule 33A gives effect to that scheme. Under rule 33A(2), the Upper Tribunal controls whether to permit an amendment or additional ground that would trigger transfer. The tribunal must decide that question before a mandatory transfer can arise.

4. Neither section 18 nor any other provision of the 2007 Act or the Upper Tribunal Rules confers a free-standing discretionary power to transfer a claim begun in the Upper Tribunal. Rule 33A(3)(b) is confined to a case previously transferred from the High Court under section 31A(3) of the Senior Courts Act 1981, where transfer back appears just and convenient.

5. Party agreement cannot confer jurisdiction. Although the parties could propose a consent order seeking permission to amend or add grounds, permission remained solely for the tribunal. On the facts, neither party sought an immediate amendment; the proceedings were instead to be stayed while the respondent considered further material.

This was not an appeal. It determined the validity of an interlocutory consent order in judicial review proceedings begun in the Upper Tribunal.

• Upper Tribunal: the order sealed on 27 May 2015 purported to transfer the claim to the High Court. The present judgment held that order to be a nullity.