T, R (on the application of) v The Secretary of State for the Home Department

Section 25 of the Tribunals, Courts and Enforcement Act 2007 permits the Upper Tribunal to transfer a damages action to a county court once the public-law issues in an immigration judicial review have been resolved. Such case management is incidental to its judicial-review functions.

The appropriate forum depends on the issues remaining. A county court will commonly be suitable for an historic damages claim requiring ordinary civil procedures. The Immigration and Asylum Chamber will generally be better placed to determine a novel question concerning the scope of an ECHR right, even where the alleged breach is historic.

The applicant sought judicial review of the Secretary of State’s failure to co-operate in his transfer from Italy to the United Kingdom under the Dublin III arrangements. The Secretary of State accepted responsibility for his protection claim and he subsequently arrived in the United Kingdom.

At the oral renewal hearing, the parties agreed that the transfer-related public-law relief had become academic. They disagreed about the remaining claim for a declaration and damages for alleged substantive and procedural breaches of Article 8 ECHR, and about costs. The Tribunal determined whether it could transfer the residual claim and which forum was appropriate.

1. Claim transferred. The applicant received permission to withdraw the academic public-law claims. His claims for a declaration and damages for alleged Article 8 breaches were transferred to the Central London County Court. Costs were reserved and transferred with the claim.

2. Section 25 of the Tribunals, Courts and Enforcement Act 2007 gave the Upper Tribunal the relevant powers of the High Court in matters incidental to its functions. Once the public-law issues in an immigration judicial review have been resolved, managing the remaining damages action by transfer is incidental to its judicial-review function. The Tribunal therefore had power to transfer it.

3. The statutory power, rather than rule 5(3)(k) of the Tribunal Procedure (Upper Tribunal) Rules 2008, was the source of the transfer power. The rule nevertheless identified the practical question: whether the county court was a more appropriate forum for the remaining ECHR liability and damages issues.

4. The county court’s experience of Human Rights Act claims was relevant but not determinative. Historic damages claims requiring disclosure and cross-examination may be more suitable for ordinary civil proceedings. Conversely, the Immigration and Asylum Chamber will generally be best placed to determine novel issues about the ambit of ECHR rights. No novel Article 8 issue was suggested here, so transfer was appropriate.

5. The Tribunal declined to direct the county court’s case management of the proposed Part 7 claim.

Permission to bring judicial review was refused on the papers on 12 July 2021. At the oral renewal hearing, the parties agreed that the transfer-related public-law relief was academic. The Upper Tribunal transferred the remaining Article 8 declaration and damages claims to the Central London County Court.