Scottish Court of Session Decisions

Tehrani, Re Judicial Review Decisions [2003] ScotCS 100 (3 April 2003)

OUTER HOUSE, COURT OF SESSION
P1021/02	OPINION OF LORD PHILIP in Petition of BEHROUZ TEHRANI Petitioner; for Judicial Review of Decisions of an Adjudicator and of an Immigration Appeal Tribunal     ________________

Petitioner: Devlin; Brodies, W.S.

Respondent: Drummond; H.F. Macdiarmid

3 April 2003

1. In this petition of Behrouz Tehrani ("the petitioner") seeks judicial review of two decisions. The first is a determination of an Adjudicator dated 21 February 2002 refusing the petitioner's appeal against a decision of the Secretary of State for the Home Department ("the respondent") refusing his application for asylum in the United Kingdom. The second is a determination of the Immigration Appeal Tribunal dated 28 March 2002 refusing the petitioner's leave to appeal against the determination of the Adjudicator.
2. The background to the case can be briefly stated. The petitioner is an Iranian national who avers that he and members of his family were subject to imprisonment, detention, and cruel inhuman and degrading treatment and punishment, including torture, at the hands of the Iranian authorities in the period from 1983 until 2001. To escape this treatment the petitioner fled Iran on 18 March 2001. After his arrival in the United Kingdom he applied for asylum. By a decision dated 11 May 2001 the respondent refused his application. He appealed against that decision to an Adjudicator, who refused the appeal in a determination dated 21 February 2002. The petitioner then applied to the Immigration Appeal Tribunal for leave to appeal against the Adjudicator's determination, but that application was refused by the Tribunal in a determination dated 28 February 2002.
3. I was informed by the petitioner's counsel that after his arrival in the United Kingdom the petitioner spent about two months in England. Thereafter he was sent by the immigration authorities to Scotland where he has remained ever since. As he is in receipt of support his place of residence is determined by the authorities. The hearing before the Adjudicator was held in Durham and the hearing before the Immigration Appeal Tribunal was held in London. The Tribunal sits in London but has facilities to hear applications presented in other parts of the United Kingdom by means of telecommunication links.
4. The answers lodged on behalf of the respondent incorporate a plea to the jurisdiction of this Court on the ground that the hearings before the Adjudicator and the Immigration Appeal Tribunal took place, and their determinations were made, in England. The case came before me for a First Hearing when argument was confined to the respondent's plea to the jurisdiction. This opinion is concerned with that argument.
5. It was common ground between the parties that by virtue of paragraph 4 of schedule 5 and paragraph 12 of schedule 9 to the Civil Jurisdiction and Judgments Act 1982 the provisions of that Act did not apply to the review of the decisions of tribunals. It was also common ground that the Court of Session had a supervisory jurisdiction over all inferior courts and tribunals in Scotland. The point at issue was whether, in the circumstances of this case, the supervisory jurisdiction of the Court of Session extended to the review of the decisions of the Adjudicator and the Tribunal, both of whom sat outside Scotland.
6. On behalf of the respondent, Miss Drummond submitted that the supervisory jurisdiction of the Court of Session did not extend to tribunals situated beyond Scotland. Reference was made to Clyde & Edwards on Judicial Review, paragraphs 7.30 and 23.07, Maclaren on Court of Session Practice, pages 118-9, Forbes v Underwood 1886 13R 465, at 467, Brown v Hamilton District Council 1983 S.C. (H.L.) 1, and West v Secretary of State for Scotland 1992 SC 385.
7. So far as substantive appeals from the Immigration Appeal Tribunal were concerned, paragraph 23 of schedule 4 to the Immigration and Asylum Act 1999 provided that the Court of Session should hear such appeals only where the appeal to the tribunal was from the determination of an Adjudicator made in Scotland. In any other case the appropriate appeal court was the Court of Appeal in England. There was no corresponding statutory provision governing jurisdiction in judicial review of tribunal decisions.

[8] Although the respondent was subject to the jurisdiction of the Scottish court by virtue of the provisions of section 46 of the Civil Jurisdiction and Judgments Act 1982, in the present petition the respondent was not the decision-maker whose decision was under review. He was respondent only because of the provisions of Practice Note No. 1 of 1992. That Practice Note followed a statement made by the Attorney General in Parliament terminating the previous practice by which the tribunal was represented before the court in judicial review proceedings. It was simply a matter of practical convenience that the Secretary of State should be the respondent in petitions for review. The decision-makers whose decisions were under review were the Tribunal and the Adjudicator. Neither the Tribunal nor the Adjudicator were arms of the Secretary of State. Both were independent tribunals, and both sat and issued their determinations in England. If an applicant were able to choose between the two jurisdictions without restriction, confusion and "forum shopping" would result. Moreover it would be unsatisfactory if the rules applying to jurisdiction in judicial review differed from those applying to jurisdiction in substantive appeals.

8. In inviting me to repel the plea to the jurisdiction Mr Devlin for the petitioner argued that the Secretary of State was the respondent in these proceedings because he was the substantive decision-maker who, through the medium of an immigration officer, made the decision on the original asylum application. He was the respondent in fact and in law because he sought to uphold his original decision. He and the petitioner were the only parties who had an interest in the outcome of the case. Since the respondent was domiciled in all parts of the United Kingdom by virtue of section 46 of the 1982 Act, the Court of Session had jurisdiction. Reference was made to Jackson on Immigration Law and Practice paragraphs 20-65 to 20-66.
9. Mr Devlin went on to submit that the provisions in schedule 4 to the 1999 Act relating to appeals from the tribunal were irrelevant to the question of jurisdiction in petitions for judicial review. Jurisdiction in judicial review was connected to the power to enforce the court's decision or to connecting factors. The petitioner had resided in Scotland for the greater part of his stay in the United Kingdom and continued to reside there. The Adjudicator and the Immigration Appeal Tribunal were United Kingdom tribunals. Both were appointed for the United Kingdom and Adjudicators might sit anywhere in the country. There was a unified appellate authority. See McDonald's Immigration Law and Practice 5^th ed. para.18.69. In these circumstances, there could be no question of the exercise of an extraterritorial jurisdiction.
10. Mr Devlin referred to the opinion of Lord Dunpark in Bank of Scotland v I.M.R.O. Ltd 1989 S.C. 107, with which Lords Morison and Maxwell agreed, in which his Lordship said that the supervisory jurisdiction of the Court of Session was confined to bodies in Scotland. Mr Devlin submitted that the cases cited by Lord Dunpark in support of that proposition did not in fact vouch it, and his Lordship's conclusion was therefore wrong. Those cases were Brown v Hamilton District Council ; St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 S.L.T. 171; Williams v Royal College of Veterinary Surgeons (1897) 5 S.L.T. 208 and Moss' Empires Ltd v Assessor for Glasgow 1917 S.C. (H.L.) 1, per Lord Kinnear at page 7 and Lord Shaw of Dunfermline at page 11.
11. During the course of submissions counsel for the petitioner informed me that a number of decisions of Adjudicators sitting in England had been reviewed by the Court of Session without any challenge to the jurisdiction by the respondent. While counsel for the respondent did not, as I understood it, accept this assertion, the fact that the plea was not taken in the past does not prevent it being given effect to now, if it is well founded.

Decision

12. The review of decisions of tribunals falls within the supervisory jurisdiction of the Court of Session described by Lord Shaw of Dunfermline in Moss' Empires Ltd v Assessor for Glasgow 1917 S.C. (H.L.) 1 at page 11 as follows:

"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."

13. The jurisdiction of the Court of Session is confined to Scotland, so the implication must be that only "inferior judicatories and administrative bodies" within Scotland are subject to the supervisory jurisdiction of the court, but in order to determine the question at issue in this case it is necessary to consider the basis, as well as the practical application, of that jurisdiction. The review of decisions of tribunals falls outwith the scope of the Civil Jurisdiction and Judgments Act 1982, so it is necessary to look to the common law for the rules and principles governing the exercise of the jurisdiction.
14. The two main grounds of jurisdiction which were, prior to the enactment of the 1982 Act, generally applicable were the defender's residence in Scotland or his ownership of heritable property in Scotland. The principle underlying those grounds of jurisdiction is explained by Erskine's definition of jurisdiction in his Institute of the Law of Scotland, I., 2, 2. "Jurisdiction is a power conferred on a judge or magistrate to take cognisance of and determine debatable questions according to law, and to carry his sentences into execution" (my emphasis).

At I. 2, 3, Erskine explains the boundaries of the judge's jurisdiction and the validity of purported judicial acts outside those boundaries:

"The tract of ground or district within which a judge thus constituted has a right of jurisdiction over the persons and estates of the inhabitants is called his territory. As his whole powers are confined to the precise limits of that district, every act of jurisdiction exercised by him beyond his territory is null; not only his judicial proceedings before, or at giving judgment, but those acts by which his sentence is to be made effectual"(again my emphasis).

At common law, therefore, questions of jurisdiction depend on whether or not the court can pronounce a judgment which will be effective within its territory. See also Green's Encyclopaedia of the Laws of Scotland, Vol.8 paras.1174-1175, (Article on Jurisdiction by D. Oswald Dykes, K.C., Professor of Constitutional Law and History in the University of Edinburgh.)

15. More recently, in Bank of Scotland v I.M.R.O. Ltd, at page 117, Lord Dunpark reaffirmed that proposition

"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.... I may express my opinion that this court could not competently exercise its supervisory powers by reducing these I.M.R.O. 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".

16. The need for the power to enforce applies just as much to the supervisory jurisdiction of the Court of Session, as to its other areas of jurisdiction. Under the supervisory jurisdiction, the court may require to pronounce orders against a decision-maker for reduction of his decision, for interdict against its implementation, or for the implementation of a statutory obligation contrary to his decision. The decision-maker may be intent on implementing his decision regardless of the court's orders. In such a case his presence within the jurisdiction is necessary to enable the court's orders to be enforced.
17. The petitioner argues that the Court has jurisdiction by virtue of section 46 of the 1982 Act which provides that the Secretary of State as representing the Crown is domiciled in every part of the United Kingdom. He also relies on Practice Note No.1 of 1992, and the fact that the respondent was the decision-maker in the original asylum application. In my opinion these arguments are unsound. The decisions under review are those of the Adjudicator and the Immigration Appeal Tribunal, and the question is whether this court has jurisdiction over them. Miss Drummond's contention that the Practice Note provides for the Secretary of State to be the respondent simply as a matter of practical convenience seems to me to have some force. The background to the Practice Note was the view that it was inappropriate for a judicial or quasi judicial body to appear as a party before the court. At the same time the Secretary of State represented an appropriate contradictor since he had an interest in the outcome of applications for review. But the fact that the Secretary of State is subject to the jurisdiction of the court does not in my view confer jurisdiction over the Adjudicator and the Immigration Appeal Tribunal.
18. Emphasis was placed by counsel for the petitioner on the fact that the appellate authority was unified. That was a clear indication, according to him, that the Court of Session had jurisdiction to review the decisions of all adjudicators and Immigration Appeal Tribunals wherever they might sit or make their decisions. While it is true that schedule 4 to the Immigration and Asylum Act 1999 contains appeal provisions which apply throughout the United Kingdom, the jurisdictions of the courts of England and Scotland in relation to substantive appeals from the Immigration Appeal Tribunal are kept separate. The jurisdiction to hear such appeals is conferred on the Court of Appeal in England, the Court of Session being confined to hearing appeals in which the adjudicator made his determination in Scotland. So, although the appeal system may be said to be unified, appellants do not have a free choice as to the jurisdiction to which they may appeal.
19. The schedule makes no reference to judicial review or to the jurisdiction to deal with it. Accordingly there is nothing in the legislation which impinges on the rules of common law which, in my view, govern the supervisory jurisdiction of the Court of Session. Applying all those rules to the present case, I am of the opinion that the Adjudicator, who sat and determined this case in England, is not subject to the jurisdiction of this court because any judgment of the court cannot be enforced against him.

[21] The position of the Immigration Tribunal calls for further consideration. Although, as I understand it, the Tribunal sits in London, it is able to hear cases presented in other centres, including Scotland, through a telecommunication link. The Tribunal has premises in Scotland from which parties make their submissions by means of the link. In the light of these factors it might be argued that the Tribunal should be treated as a Tribunal situated in Scotland. For that argument to be accepted, the Industrial Appeal Tribunal organisation would require to be regarded as a single persona encompassing all its members, staff and assets. That, in my view, is not the correct approach. The correct analysis is that the decision-makers in this instance are the individual members who made up the Immigration Appeal Tribunal which actually heard and decided this case. The question therefore is whether the Court of Session has jurisdiction over those individuals. The answer is in the negative because under the common law rules which I have explained the court would be unable to enforce its decision against them.

20. The personal nature of decisions of the court under the supervisory jurisdiction was graphically explained by Lord President Inglis in Forbes v Underwood (1886) 13R 456, at page 467 to 468:

"......there is no doubt whatever that whenever an inferior Judge, no matter of what kind, fails to perform his duty, either by going beyond his jurisdiction, or by failing to exercise his jurisdiction when called upon to do so by a party entitled to come before him, there is a remedy in this Court, and the inferior Judge, if it turns out that he is wrong, may be ordered by this Court to go on and perform his duty, and if he fails to do so he will be liable to imprisonment as upon a decree ad factum praestandum. The same rule applies to a variety of other public officers, such as statutory trustees and commissioners, who are under an obligation to exercise their functions for the benefit of the parties for whose benefit these functions are entrusted to them, and if they capriciously and without just cause refuse to perform their duty they will be ordained to do so by decree of this Court, and failing their performance will, in like manner, be committed to prison."

It was not suggested that these sanctions could be invoked against Adjudicators and Tribunal members sitting and issuing their determinations in England.

21. I was told that the petitioner lives in Scotland and has done so since shortly after his arrival in the United Kingdom. In that connection I was referred to the following passage from McDonald's Immigration Law and Practice 5^th Edition paragraph 18.70:

"In applications for judicial review, the question (of the choice of jurisdiction) is not so easily determined. Where the challenge is to a decision of the Secretary of State, the English High Court or the Scottish Court of Sessions (sic) may each have or claim jurisdiction. In Sokha, the Court of Sessions resolved the matter by the application of the doctrine of forum non conveniens, and rejected jurisdiction in a case with no Scottish connection. Although strong preference should be given to the forum chosen by the applicant, particularly where the alternative jurisdiction is another part of the UK, rather than a wholly foreign country, this preference may be overcome if the respondent can 'establish that there is another available forum which is clearly and distinctly more appropriate', although less advantageous."

While it may be regarded as unfortunate that an applicant for asylum who has no choice but to live in Scotland should be compelled to pursue his appeal in England, there is no rule of law which, so far as I am aware, would enable the Scottish court to claim jurisdiction on the basis of the strong preference of the petitioner. According to the rules which, according to my understanding, continue to govern the jurisdiction of the Court of Session in relation to the review of the decisions of tribunals, it is the power of the court to enforce its decisions which must determine the jurisdiction. Since the 1982 Act does not apply, the words of Erskine in his Institute, I. 2, 16, continue to represent the law:

"It imports nothing where the pursuer that his domicile, for he must follow that of the defender, since no defender is obliged to appear before a court to which the law that not subjected him."

I therefore conclude that I must sustain the respondent's plea to the jurisdiction in this case.