ABW v Secretary of State for the Home Department

The statutory scheme for transferring judicial review applications to the Upper Tribunal does not require every decision made under an Immigration Act to be transferred. The relevant direction must be interpreted purposively and as a whole, having regard to the specialist immigration jurisdiction it establishes. A decision under section 63 of the Nationality and Borders Act 2022 making a public order disqualification is principally concerned with removing modern-slavery recovery support and may affect United Kingdom citizens as well as foreign nationals. It therefore falls outside mandatory transfer. Transfer remains discretionary where it is just and convenient. Relevant considerations include the procedural stage of the claim, the claimant’s vulnerability and need for expedition, the nature of the issues, and the suitability of the High Court forum.

The claimant, a national of Trinidad and Tobago, received a positive reasonable-grounds trafficking decision and brought judicial review proceedings challenging a public order disqualification decision under section 63 of the Nationality and Borders Act 2022. The decision ended his entitlement to recovery support. After later decisions and withdrawal of the original decision, the proceedings were reconfigured to challenge a replacement decision.

At a case-management hearing, the issue was whether the claim had to be transferred from the High Court to the Upper Tribunal Immigration and Asylum Chamber under section 31A of the Senior Courts Act 1981 and the relevant direction, or whether it should be transferred in the court’s discretion.

1. Mandatory transfer. Conditions 1 and 2 in section 31A of the Senior Courts Act 1981 were satisfied, but Condition 3 was not. Paragraph 1(i) of the Direction had to be interpreted objectively and purposively, read as a whole and in light of its purpose of allocating to the Upper Tribunal cases requiring specialist immigration expertise.
2. The words referring to decisions made under the Immigration Acts, or otherwise relating to leave to enter or remain outside the immigration rules, were not separate and disjunctive criteria. They provided a contextual description of immigration decisions and decisions arising in the context of immigration status. The breadth of the statutory definition meant that not every decision made under an Immigration Act fell within the Direction.
3. A public order disqualification under section 63 of the Nationality and Borders Act 2022 had immigration consequences for some foreign nationals, including consequences concerning removal and limited leave. Its more direct effect, however, was to remove modern-slavery recovery support. The scheme applied equally to United Kingdom citizens and foreign citizens. The decision was therefore not one which the Direction required to be transferred mandatorily.
4. Discretionary transfer. Section 31A(3) conferred a broad case-management discretion to transfer a case where it was just and convenient to do so. Although such decisions were within the institutional competence of the Upper Tribunal, the present claim should remain in the High Court. The claim was well advanced, the claimant was vulnerable and required expedition, and the challenge included the defendant’s statutory guidance governing section 63 decisions.
5. The parties were directed to agree a draft order and directions enabling the claim to proceed to an efficient and effective hearing as soon as possible.

The judgment concerned a first-instance case-management issue. Permission to apply for judicial review and interim relief restoring recovery support had been granted by the High Court on 14 June 2024. The proceedings were subsequently reconfigured to challenge a later public order disqualification decision.