England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE JACKSON)

		Royal Courts of Justice Strand London, WC2
		1 April 2003

Tuesday, 1 April 2003

1. LORD JUSTICE BROOKE: This is an application by the claimant for permission to appeal against a decision of Jackson J in the Administrative Court on 8 October 2002 when he refused him permission to apply for judicial review on the grounds that the court had no jurisdiction to deal with the matter. The reason why he took this step was because the decision impugned in these proceedings was a decision of the Immigration Appeal Tribunal dated 22 March 2002, whereby the claimant was refused permission to appeal against the determination of an immigration adjudicator sitting in Glasgow. On 7 February 2002 that adjudicator had dismissed the claimant's appeal against the decision to issue a removal direction. He was refused asylum at the same time. In a very short judgment Jackson J said:

"There is a jurisdictional point which I raised at the very commencement of the hearing this morning, and that is this: if the underlying litigation arose in Scotland, does this court have jurisdiction to entertain the judicial review proceedings? Paragraph 23(3) of schedule 4 to the Immigration and Asylum Act 1999 provides for appeals from [the Tribunal concerning decisions of an Adjudicator sitting in Scotland to lie to the Court of Session. Although paragraph 23(3) does not expressly deal with judicial review, it would plainly be an absurdity for appeals from the Immigration Appeal Tribunal in such matters to go to Scotland, and for judicial review to go to the High Court in London.

Furthermore, I understand that in practice judicial review challenges to decisions of the IAT on appeals from Adjudicators in Scotland do go to the Court of Session in Scotland. I also understand that when the Immigration Appeal Tribunal hears appeals from Adjudicators sitting in Scotland, the IAT treats itself as sitting in Scotland, even though in practice this is normally achieved by means of a video link.

In the circumstances of this case this court has no jurisdiction to hear the claim for judicial review, and in those circumstances the proper order which I now make is to refuse permission to apply for judicial review."

2. The claimant is an Iraqi citizen of Kurdish origin. He arrived in this country in Dover in July 2000. He was interviewed in connection with his asylum claim in Leeds, and the Secretary of State's decision to refuse him asylum was made in England. He was, however, "dispersed" to Scotland with the result that his appeal was heard by an adjudicator in Scotland.
3. The Immigration Appeal Tribunal is a national appeal tribunal hearing appeals from adjudicators on both sides of the Scottish border. We have been told that the last time it physically sat in Scotland was on the occasion of a hearing in Glasgow in January 2002. It now conducts Scottish appeals by video link from its new premises in Breams Building, London EC4. As Jackson J observed, appeals from its rulings on appeals from decisions by adjudicators sitting in Scotland lie to the Court of Session, and not to this court.
4. Two questions arise for decision on this appeal: (i) does this court have jurisdiction to entertain an application for judicial review; and (ii) if it does possess jurisdiction, ought is it to exercise it in this case? We have been shown a judgment of MacPherson J in a tax matter which raised similar questions in R v Special Commissioner ex parte RW Forsyth Ltd [1986] STC 565. The taxpayer company was incorporated and registered in Scotland where it traded as a retailer. All the proceedings relating to its appeals against two assessments to corporation tax had been heard in Scotland, but his application for postponement of the tax assessed was heard, at the request of his advisors, by a Special Commissioner sitting in London, who postponed a small part of the tax assessed. An application was granted for leave to apply for judicial review of that decision.
5. The following year the Court of Session pronounced a decree in favour of the Revenue in an action by Lord Advocate for the recovery of the tax not postponed in spite of an argument that that court should heed the Order 53 proceedings. Its decision was founded on its conclusion, to which I will return, that this court had no jurisdiction in the matter.
6. Against this background McPherson J made an order staying the Order 53 proceedings. He said (at page 568H):

"It is argued that since the Special Commissioner stands in the shoes of the General Commissioners, by reason of the taxpayer's election, so he should be taken to be in effect purely a Scottish tribunal in any Scottish case. But the position, in my judgment, is that a Special Commissioner stands in his own shoes. His office or jurisdiction starts from Turnstile House and extends throughout the United Kingdom. Tax and its assessment is a United Kingdom business, in the sense that there is no exclusive Scottish tax system.

This court must guard its position so far

as review of the activities of Special Commissioners carried on in England is concerned. In the instant case the only connection with England was the postponement application, but it seems to me in the light of the arguments and the cases cited to me that I should beware of ruling that this court is wholly without jurisdiction lest that might lead to later problems.

The cases cited were Rutherford v

Lord Advocate (1931) 16 TC 145, and R v Industrial Disputes Tribunal, ex p Kigass Ltd [1953] 1 WLR 411."

7. Having declined to rule there could be no jurisdiction in a case of this kind, he went on to say (at page 569F) that he was wholly convinced that the proceedings should be stayed. In reaching this conclusion he referred to common sense and convenience and the interests of comity.
8. I cannot help noticing that in the same case the Lord Ordinary (Lord Wylie) took a more robust view of the matter from a Scottish standpoint (see Lord Advocate v RW Forsyth Ltd 61 TC 1). He said (at page 5):

"It was submitted on the defenders' behalf that the High Court certainly had jurisdiction, and perhaps paramount jurisdiction, to consider and if necessary review the actings of the Special Commissioner. Even if both Courts had a concurrent jurisdiction it could not be said that the application was not properly before the High Court of Justice and these proceedings could not be disregarded. The issue raised was one related to the performance of an administrative function by a Special Commissioner sitting in London and questions of domestic law did not arise. I have already questioned whether the Special Commissioner was performing a purely administrative function, but even if it could be properly so described, the critical question is whether he was acting in the context of purely Scottish proceedings. If he was there could only be one court with the pre-eminent supervisory jurisdiction, that is the Court of Session. The supervisory jurisdiction of that court, as the supreme civil court in Scotland, over inferior courts and tribunals has long been recognised - see Brown v Hamilton District Council 1983 SLT 397 per Lord Fraser of Tullybelton page 414 - and a decision of a Commissioner for the Special Purposes of the Income Tax Acts on a Scottish tax case, albeit that he is sitting no doubt for administrative convenience in London, must in my view remain subject to the supervisory jurisdiction of the Scottish Court. It is not difficult to imagine the confusion which could in certain circumstances result if more than one court had such a jurisdiction."

9. In R v Secretary of State for Scotland and Another ex-parte Greenpeace (Crown Office transcript 24 May 1995) Popplewell J held that he had no jurisdiction to entertain an application for judicial review of a decision by the Secretary of State of Scotland to grant a licence under 1985 legislation to Shell UK to dispose of the terminal Brent Spa in deep water and a related decision of the Chief Inspector of the Industrial Pollution Inspectorate for Scotland. This was a more straightforward case and Popplewell J had little difficulty in determining the jurisdiction point. He said (page 6B of the judgment):

"The other aspect of the argument put forward by the Secretary of State is this. By the Union with Scotland Act 1706 the position of the English courts in their relations with Scottish courts was regularised by Article XIX. It was intended in operation that the English courts would not seek to exercise jurisdiction over Scottish cases and vice versa, and that the English courts would not interfere with decisions of the Scottish courts. The relevant words of Article XIX are:

'... and that no causes in Scotland be cognoscible by the Courts of Chancery, Queen's Bench, Common Pleas, or any other court in Westminster Hall; and the said courts, or any other of the like nature, after the union, shall have no power to cognosce, review, or alter the acts or sentences of the judicatures within Scotland, or stope the execution of the same.'

It seems to me that envisages two situations: first, that those who have a right of action in Scotland shall not bring their case in an English court; if a person has a right of action in Scotland, the English courts will not deal with it; if there is a case brought in Scotland and dealt with by a Scottish court, the English courts will have nothing to do with it.

I believe that this is, indeed, properly

described as a Scottish case; that this administrative decision is a decision of a Scottish administration and that it would be quite improper for an English court to seek to review the making of what is essentially a foreign administrative decision. I believe that Article XIX is an additional matter which supports that view. I think they are two separate arguments and they go hand in hand. A right of action in Scotland is not to be tried by an English court.

... I am quite satisfied that this is a

case in which I do not have jurisdiction to deal with the matter."

10. Although the Immigration Appeal Tribunal now hears appeals in Scottish cases from its base in London and asylum and immigration are not devolved issues, it appears to me that Parliament has made clear its wish that it is the courts in Scotland that should have ultimate responsibility in relation to appeals to the Immigration Appeal Tribunal from adjudicators in Scotland. In the 1999 Act it made it clear that substantive appeals in Scottish cases lie to the Court of Session and not to this court. In the Nationality Immigration and Asylum Act 2002 Parliament has gone further in section 101. Under a new statutory procedure for review of the Immigration Appeal Tribunal's decision on an application for permission to appeal, section 101(2) reads:

"A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review the Tribunal's decision on the ground that the Tribunal made an error of law."

11. Miss Carrs-Frisk QC, who appears for the claimant, has shown us some decisions (some of which were also shown to McPherson in Forsyth) which suggest that the English Court should not decline jurisdiction altogether when invited to exercise supervisory jurisdiction over a decision made by a public body in England. In R v Industrial Disputes Tribunal ex-parte Kigass Ltd [1953] 1 WLR 411 the Industrial Tribunal in England had issued an award in a dispute relating to the wages of an English company's female engineering workers who worked in a factory in Scotland. Lord Goddard CJ, who had great experience in these matters, said (at page 414) at the outset of his judgment:

"Yesterday we considered the question whether it would be right for this court to deal with the matter or whether it ought to have gone to the Court of Session, and we came to the conclusion that, although it would no doubt be within the competence of the Court of Session to hear the case, the company had their registered office in this country and the tribunal had sat in this country, and therefore there would be no objection on a point of law or point of comity to this court hearing and determining the motion. At the same time, speaking for myself, I cannot help thinking that it would be much better, where the whole subject-matter of the dispute has arisen in Scotland, that the proceedings should be taken in the Scottish and not the English courts but, as I have said, we hold that, from the point of view of comity, there is no objection to our going into the matter."

12. For the sake of completeness I would include a reference to the decision of the Court of Session in Bank of Scotland v Investments Management Regulatory Organisation Ltd [1989] SLT 432. In that case the question arose whether the Court of Session had jurisdiction to entertain applications relating to decisions by IMRO, a self-regulating organisation for the purposes of the Financial Services Act 1986 whose registered office was in London. Lord Dunpark said in passing (at page 439):

"Counsel submitted that the supervisory jurisdiction of the Court of Session had always been exercised on a territorial basis. In support of this proposition counsel referred to a number of cases: Brown v Hamilton District Council, per Lord Fraser [1983] SLT p 414; St Johnstone Football Club Ltd v Scottish Football Association Ltd, per Lord Kilbrandon at 1965 SLT p 175; Williams v Royal College of Veterinary Surgeons; and Moss' Empires Ltd v Assessor for Glasgow, per Lord Kinnear 1916 2 SLT p 218 and Lord Shaw of Dunfermline at p 220, where Lord Shaw said: 'It is within the jurisdiction of the Court of Session to keep inferior judicatories and administrative bodies right in the sense of compelling them to keep within the limits of their statutory powers, or of compelling them to obey those conditions without the fulfilment of which they have no powers whatsoever.' Rutherford v Lord Advocate was cited, for Lord Fleming, at 1931 SLT, p 408, decided that the Court of Session should not grant suspension of a notice of poinding, following an assessment of tax due by the complainer but made by the general commissioners of income tax for the County of Warwick, in respect that the complainer's proper remedy was reduction of the assessment in English courts.

Counsel emphasised that the exercise of the

supereminent jurisdiction of the Court of Session must be confined to bodies in Scotland, for it had no power to enforce its decisions against bodies furth of Scotland. I entirely agree with this submission, but I think that as this case was argued, it relates to the competency of the remedy sought by the bank. I may express my opinion that this court could not competently exercise its supervisory powers by reducing these IMRO decisions because the exercise of such powers is confined to supervising the acts and orders of public bodies based in Scotland over which the Court of Session has control; but counsel for IMRO did not move us to sustain IMRO's plea for competency."

13. It is fortunately not necessary for us to conclude finally that the High Court has no supervisory jurisdiction at all over decisions by the Immigration Appeal Tribunal relating to appeals from adjudicators in Scotland. It may be that in a real emergency it might be desirable for the High Court to exercise jurisdiction and make an appropriate order. But it would have to be a very exceptional case. As a matter of general everyday practice I have no hesitation in holding that it is to the Court of Session and not to the High Court to which applications of this kind should lie, on the basis of the general reasoning articulated by the Lord Ordinary in Forsyth.
14. Miss Carrs-Frisk boldly submitted that if concurrent jurisdiction does exist, then on what I will describe as Spiliada lines, this court is by far the most convenient forum. She reminded us of the relevant principles which were set out in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460. These are conveniently summarised in Dicey & Morris (13th ed), Chapter 12, particularly at paragraphs 12-026 and 12-118. In seeking to apply these principles to the present case she submitted that the Secretary of State bore the burden of persuading the court to decline to exercise its jurisdiction in the exercise of its discretion, and that there was no other available forum which was prima facie the appropriate forum for the hearing of the application for judicial review or the substantive claim.
15. She said that there was nothing to suggest that England was not the natural or appropriate forum in relation to a judicial review of a decision of a tribunal made in England, and the Court of Session could not be said to be clearly and distinctly a more appropriate forum. There was no particular connection between this case and Scotland other than that the claimant was dispersed to Scotland, in the result that his appeal was heard by the adjudicator in Scotland. In this respect she said that we should distinguish the facts of the present case from the facts in Forsyth where virtually everything in the case was connected with Scotland except that the venue of the hearing before the Special Commissioner was changed to London at the behest of the tax payer's lawyers.
16. Returning to the facts of the present case Miss Carrs-Frisk pointed out that the claimant arrived at Dover; he applied for asylum in England; he was interviewed in respect of his asylum claim in England; the Home Secretary's decision to refuse him asylum was made in England; and the decision to refuse permission to appeal against the adjudicator's decision was made by the IAT in London. In addition any decision to implement successful or unsuccessful appeals either by the grant of refugee status or removal from the United Kingdom would take place in England, and indeed it is normally the port of entry which would enforce removal. She submitted that there were no factors of convenience or expense which pointed to the Court of Session being the more appropriate forum for dealing with this particular judicial review. She added that the case could be dealt with by the High Court perfectly conveniently and at no greater expense than in Scotland. The claimant's representative, the Immigration Advisory Service, was a national organisation which acted for him both at adjudicator and IAT level and it could conveniently continue to represent him in judicial review proceedings in the High Court through its London office. She also told us the Legal Services Commission had no objection to funding the judicial review challenge since the decision challenged was made by a body sitting in England and Wales. She submitted that the fact that any appeal against the final determination of the IAT in this case will go to the Court of Session had no bearing on the appropriateness of the Court of Session to consider this claim for judicial review as compared with English Court.
17. She said that the question is whether the Court of Session is clearly or distinctly the more appropriate forum to hear this claim. She added to these submissions the contention that it would be quite wrong to divert the claimant and his advisors to Scotland; there was no settled practice, no regulations, and no guidance to suggest to a claimant that the route to supervisory jurisdiction by way of judicial review in Scottish cases lies in Scotland, and in all the circumstances whatever might be the position for the future it would be appropriate for this case to stay in England.
18. She also relied in support of her contentions based on the private law line of authority to which I have referred on the decision of the House of LordS in Lubbe v Cape Plc [2000] 1 WLR 1545, and in particular the observations by Lord Bingham of Cornhill (at page 561) relating to the public interest, and Lord Hope of Craighead on the same topic at pages 1566 to 1567.
19. In my judgment the considerations which arise in cases of that kind are quite different from the considerations which would affect this court in relation to the present proposed appeal. Here, we are concerned with the question: which court within the United Kingdom should exercise supervisory jurisdiction over the decision of an appeal tribunal relating to an adjudication made by an adjudicator in Scotland? I consider that this is not a matter which should be resolved purely by relation to matters of private convenience, because it raises questions of constitutional principle. In my judgment it is appropriate for this court to make it quite clear that applications of this kind in relation to decisions by the Immigration Appeal Tribunal where judicial review is sought should go to the Court of Session in Scotland and not to this court.
20. For these reasons I would dismiss this application.
21. The court sought to ascertain from Miss Anderson, who appears for the Secretary of State for the Home Department, that no point would be taken on the grounds of delay if Mr Mohammed Ali Mohammed Majaed made an application before the Court of Session in Scotland. There is no regulatory time-bar in Scotland, although we were shown that, in the event of delay the Court of Session might decide not to proceed on discretionary grounds. She was unable to obtain instructions, but I would very much hope that no point of delay is taken by the Crown in Scotland if the matter proceeds there in the circumstances that have occurred.
22. LADY JUSTICE HALE: I agree.
23. LORD JUSTICE WILSON: I also agree.
(Appeal dismissed; no order for costs, save detailed assessment of appellant's publicly funded costs; application for permission to appeal to the House of Lords refused).