High Court Clarifies Judicial Review Transfer Requirements between the Administrative Court and Upper Tribunal

In R(ABW) v Secretary of State for the Home Department [2024] EWHC 3205 (Admin), Mr Justice Dove (also President of the Upper Tribunal (Immigration and Asylum Chamber)) has helpfully clarified when a judicial review claim must be brought in or transferred to the Upper Tribunal under s 31A of the Senior Courts Act 1981 and the correct interpretation of the then-Lord Chief Justice’s Practice Direction on jurisdiction.

The issue arose in the context of a challenge to a public order disqualification made under s 63 of the Nationality and Borders Act 2022 (which is defined as an Immigration Act under s 61 of the UK Borders Act 2007). The Judge accepted submissions on behalf of the Claimant that such claims were not required to be mandatorily transferred to the Upper Tribunal. 

Under s 31A, a judicial review claim must be heard in the Upper Tribunal where, amongst other conditions, it falls within a class specified under section 18(6) of the Tribunals Courts and Enforcement Act 2007. Section 18(6) in turn defines that class as one set out in a direction given under the Constitutional Reform Act 2005; the then-Lord Chief Justice’s Practice Direction (last updated in August 2014) then sets the relevant test. One class of cases is defined as:

(i) a decision made under the Immigration Acts … or any instrument having effect (whether wholly or partly) under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the United Kingdom outside the immigration rules; …

The Judge found that this clause had to be read in light of the purpose of the Direction, which was ensuring that matters should be transferred to the Upper Tribunal where they would benefit from the specialised and expert judges in its Immigration and Asylum Chamber. It did not literally include any decision made under Immigration Acts, which cover a very broad range of powers. He concluded that, read as a whole, the clause set out one class of different powers all of which allowed decisions to be made which related to “leave to enter or remain”. It was therefore fundamentally concerned with immigration status. The language “relating to” meant that it captured not just decisions directly leading to a decision granting leave to enter or remain, but also those in relation to preparatory stages in the process of obtaining status, such as providing biometric data. 

The Judge concluded that public order disqualification decisions did not fall into that category and were therefore not required to be subject to the mandatory transfer rules.

A substantive hearing on the lawfulness of the public order disqualification decision and to the lawfulness of the public order disqualification decision-making framework will now be heard in the High Court.

Shu Shin Luh and Rosa Polaschek appeared for the claimant, instructed by John Crowley and Aisling Slater of Leigh Day.