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Tehrani, Re Petition for Judicial Review [2004] ScotCS 102 (27 April 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord Hamilton

Lord Macfadyen

P1021/02

OPINION OF THE COURT

delivered by LORD KIRKWOOD

PETITION

BEHROUZ TEHRANI

Petitioner and Reclaimer

for

Judicial Review of (1) a determination of an Adjudicator, and (2) a determination of the Immigration Appeal Tribunal to refuse him leave to appeal

and

ANSWERS

for

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

_______

Act: Bovey, Q.C., Devlin; Anderson Strathern (for Quinn Martin & Langan, Glasgow) (for Petitioner and Reclaimer)

Alt: The Advocate General for Scotland, Carmichael; H. F. Macdiarmid (for Respondent)

27 April 2004

[1] In August 2002 Behrouz Tehrani ("the petitioner") presented a petition seeking judicial review of two decisions relating to an application which he had made for asylum in the United Kingdom. The first is the determination of an immigration 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. The second is the decision of the Immigration Appeal Tribunal dated 28 March 2002 refusing the petitioner leave to appeal against the determination of the adjudicator. The respondent took a plea of no jurisdiction and by interlocutor dated 3 April 2003 that plea was sustained by the Lord Ordinary. The petitioner has reclaimed against the Lord Ordinary's interlocutor.

[2] 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 during the period from 1983 until 2001. Allegedly to escape this treatment the petitioner fled Iran on 18 March 2001. He entered the United Kingdom on 24 March 2001 and claimed asylum the same day. He spent the first week with his sister-in-law at 76 Nursery Road, London, and was then provided with hotel accommodation in London. He remained there until 18 April 2001 when he was required by the respondent to move to Glasgow under the statutory dispersal scheme which was then in force. On 19 April 2001 he was allocated the tenancy of a local authority flat in Glasgow where he still resides. If he is permitted to remain in the United Kingdom he would wish to continue to live in Scotland.

[3] We were informed by the petitioner's counsel that while in London the petitioner had instructed Latif Zamani in relation to his application for asylum. Mr Zamani had an office in London and the petitioner had instructed him on the recommendation of his cousin and in the belief that Mr Zamani was a solicitor. Mr Zamani told the petitioner that he was a solicitor, although in an undated letter from him, requesting an adjournment of the petitioner's case, he described himself as "legal adviser". Before leaving for Scotland the petitioner told Mr Zamani that he was being dispersed there, and as soon as he obtained his tenancy in Glasgow he telephoned Mr Zamani and gave him his new address. On 4 May 2001 the petitioner travelled to London to attend an interview with the respondent's Immigration and Nationality Directorate in Croydon. On 11 May 2001 the respondent refused the petitioner's application for asylum, the letter intimating the decision being then sent to Mr Zamani. The petitioner appealed to an immigration adjudicator. Mr Zamani completed the notice of appeal form dated 18 May 2001 without reference to the petitioner, and erroneously gave the petitioner's address as 76 Nursery Road, London. The adjudicator heard the petitioner's appeal on 5 February 2002 in Durham Magistrates Court. The petitioner was represented by Mr Liaqat Sharif who had been introduced to him by Mr Zamani. On 21 February 2002 the adjudicator refused the petitioner's appeal and the petitioner appealed to the Immigration Appeal Tribunal. On 28 March 2002 the Immigration Appeal Tribunal refused the petitioner leave to appeal. The Tribunal used to sit in London and Glasgow but since February 2002 it has sat only in London although it has facilities to hear applications presented in other parts of the United Kingdom by means of telecommunications links. In this case leave to appeal was refused by one member of the Immigration Appeal Tribunal in London on the basis of written submissions. In the course of the hearing before us, there was some discussion as to why, when the petitioner was living in Glasgow, the hearing before the adjudicator took place in Durham. There was no clear explanation given to us although it did appear that the normal practice was that an adjudicator hearing an appeal by an asylum seeker resident in Scotland would sit in Scotland.

[4] Counsel for both parties made reference in the course of the hearing to the statutory provisions relating to appeals from final determinations of the Immigration Appeal Tribunal. Paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 provided that such appeals should be heard by the Court of Session when the appeal to the Tribunal was from the determination of an adjudicator made in Scotland. In any other case the appropriate court is the Court of Appeal (see also section 103 of the Nationality, Immigration and Asylum Act 2002). There are no corresponding statutory provisions governing jurisdiction in judicial review of Tribunal decisions. However, we were informed that judicial review at common law of refusals by the Immigration Appeal Tribunal of leave to appeal has been effectively excluded, with effect from 9 June 2003, by section 101 of the 2002 Act. Section 101 provides for a review of a refusal by the Tribunal to give permission to appeal, the application for review being made by written submissions to a single judge of the Court of Session or, in England and Wales, of the High Court.

[5] It is common ground (1) that the petitioner has been resident in Scotland since April 2001, (2) that the adjudicator heard the petitioner's appeal in Durham in February 2002 and (3) that the Immigration Appeal Tribunal sat in London when it subsequently refused the petitioner leave to appeal.

[6] The plea of no jurisdiction was taken by the respondent on the ground that the hearings before the adjudicator and the Immigration Appeal Tribunal took place, and their determinations were made, in England. There was, as the Lord Ordinary observed, no dispute 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 not in dispute that the Court of Session has a supervisory jurisdiction over all inferior courts and tribunals in Scotland. The point at issue was whether, in the particular circumstances of this case, the supervisory jurisdiction of the Court of Session extends to the review of the determinations of the adjudicator and the Immigration Appeal Tribunal, both of which sat in England. While the petitioner had contended that the Court of Session had 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, the Lord Ordinary took the view that the fact that the respondent was subject to the jurisdiction of the Court of Session did not per se confer jurisdiction over the adjudicator and the Immigration Appeal Tribunal. He reached the conclusion that the adjudicator, who sat and determined the case in England, was not subject to the jurisdiction of the Court of Session because any judgment of the Court could not be enforced against him. So far as the Immigration Appeal Tribunal was concerned, the correct analysis was that the decision-makers in this instance were the individual member or members who made up the Immigration Appeal Tribunal which actually considered and decided the application for leave to appeal. The Lord Ordinary observed that, according to the rules which, on the basis of his understanding, continued to govern the jurisdiction of the Court of Session in relation to the review of the decisions of tribunals, it was the power of the court to enforce its decisions which must determine the jurisdiction. While it may be regarded as unfortunate that an applicant for asylum who had no choice but to live in Scotland should be compelled to pursue his appeal in England, there was no rule of law which would enable the Scottish court to claim jurisdiction on the basis of the strong preference of the petitioner. He therefore sustained the respondent's plea of no jurisdiction.

[7] Before us, counsel for the petitioner made two principal submissions. In the first place, he submitted that in a case of this nature the correct respondent was the Secretary of State for the Home Department, who was subject to the jurisdiction of the Court of Session. In the circumstances the Lord Ordinary had erred in holding that the fact that the Secretary of State was subject to the jurisdiction of the Court of Session was not sufficient, in itself, to confer jurisdiction on the court to review the determination of an appeal against a decision of the Secretary of State by an adjudicator or the Immigration Appeal Tribunal sitting in England. It was the Secretary of State who effectively controlled the United Kingdom immigration system and had a continuing interest in the location of the petitioner so long as he remained in the United Kingdom.

[8] Counsel for the petitioner's second submission was to the effect that the Court of Session has jurisdiction over any person or body that is subject to the Crown of Scotland. The Secretary of State for the Home Department, the adjudicator and the Immigration Appeal Tribunal were all part of a United Kingdom-wide body and, as such, they were subject to the Crown both of Scotland and England. The Immigration Appeal Tribunal is a national appeal tribunal which hears appeals from adjudicators in different parts of the United Kingdom. On immigration issues in the United Kingdom the Scottish courts and the English courts both have United Kingdom-wide jurisdiction. A United Kingdom body is both Scottish and English (Soutar's Executors v James Murray & Co (Cupar) Limited [2002] IRLR 22) and those who carry out its work are subject to the jurisdiction of the Court of Session and the English courts. If in any particular case there was a dispute between the parties as to which court should exercise its supervisory jurisdiction, the remedy was to be found in the plea of forum non conveniens (McKendrick v National Union of Dock Labourers (1910) 2 SLT 215 per Lord Johnston at page 217). While Article XIX of the Treaty of Union prevented English courts from hearing Scottish cases, there was no comparable restriction in relation to the jurisdiction of the Scottish courts. The Lord Ordinary had erred in holding (1) that the ability of a court to enforce its judgment is the only relevant ground upon which a court can assume jurisdiction to review a decision by a lower court or tribunal and (2) that the Court of Session did not have jurisdiction over the adjudicator and the Immigration Appeal Tribunal sitting in England because it could not enforce its judgment against them. While jurisdiction at common law depends broadly on the issue of enforceability, the fact that a judge did not have the power of executing his judgment did not necessarily mean that he was unable to exercise jurisdiction. Thus, a judge granting a conclusion for a simple declarator has no power to enforce the right which he has declared (Stair, IV, 3, 47). Further, the Lord Ordinary had erred in founding on the observations of Lord Dunpark in Bank of Scotland v Investment Management Regulatory Organisation Limited 1989 S.C.107 (at page 118) in support of the proposition that the Court of Session only has jurisdiction over inferior courts and bodies situated within Scotland. In any event, Lord Dunpark's observations were obiter and were made in an entirely different context. It was submitted that the Court of Session's supervisory jurisdiction is not restricted to the review of decisions made, or actions by, inferior courts or tribunals actually situated within Scotland. Counsel referred to Moss' Empires Limited v Assessor for Glasgow 1917 S.C.(H.L.) 1 per Lord Kinnear at page 7 and Lord Shaw of Dunfermline at page 11; St Johnstone Football Club Limited v Scottish Football Association Limited 1965 S.L.T.171 per Lord Kilbrandon at page 175 and Brown v Hamilton District Council 1983 S.C.(H.L.) 1 per Lord Fraser of Tullybelton at page 42, but submitted that these cases were concerned with the nature of the Court's supervisory jurisdiction and not its geographical limitation in a context such as the present. Counsel founded on the cases of Lord Advocate v R W Forsyth Limited 1990 S.L.T. 458 and R v Commissioner for the Special Purposes of the Income Tax Acts, ex parte R W Forsyth Limited [1987] 1 All.E.R.1035 which, he said, pointed in the opposite direction and were to be preferred. In the present case the petitioner had been dispersed to Glasgow and he had had no option in that matter. He had been living in Glasgow since April 2001 and there was a potential for injustice if an asylum seeker living in Scotland was denied access to the Scottish courts. Counsel referred to Majead v Immigration Appeal Tribunal [2003] E.W.C.A. 615 where the Court of Appeal in England had considered an application for judicial review in a case where the immigration adjudicator had sat in Glasgow. The application had been dismissed but counsel submitted that the Court of Appeal had not held that it had no jurisdiction, but had decided, as a matter of policy, not to exercise jurisdiction. However, that was not a course open to the Court of Session as, if the Scottish court had jurisdiction, then it was obliged to exercise it. On the whole matter, counsel invited us to allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 3 April 2003, repel the respondent's plea of no jurisdiction and remit to the Lord Ordinary to proceed as accords.

[9] The Advocate General, who appeared for the respondent, accepted that in this case the Secretary of State for the Home Department was the proper respondent, and that he had an interest in the outcome of the case, but submitted that that was not a relevant factor so far as the supervisory jurisdiction of the Court of Session at common law was concerned. It was submitted (a) that where neither the adjudicator nor the Immigration Appeal Tribunal has sat in Scotland, the Court of Session does not have jurisdiction in an application for judicial review of the adjudicator's decision, or the Immigration Appeal Tribunal's refusal of leave to appeal, and (b) that where the adjudicator has sat in Scotland, the Court of Session has jurisdiction in an application for judicial review of the adjudicator's determination and the Tribunal's refusal of leave to appeal, notwithstanding that the Tribunal's decision to refuse leave to appeal may have been taken in England.

[10] In the circumstances the Lord Ordinary was correct to dismiss the action on the ground that the Court of Session did not have jurisdiction, although the reasoning of the Lord Ordinary was not supported by the respondent in its entirety. The Lord Ordinary had to consider whether, at common law, the Court of Session had jurisdiction to review the decisions of the adjudicator, and the Immigration Appeal Tribunal, where neither of them had sat in Scotland. He took the view that, at common law, jurisdiction depended on whether or not the court could pronounce a judgment which would be effective within its territory. However, it was submitted that that was too narrow an approach. The real question for the Lord Ordinary was whether the court had jurisdiction over the subject matter of the cause (Maxwell, Court of Session Practice, page 102). In this case the subject matter of the cause was the decision of an adjudicator which had been taken in England, and the decision of the Immigration Appeal Tribunal to refuse leave to appeal, which had also been taken in England. There was no authority for the proposition that the supervisory jurisdiction of the Court of Session can be successfully invoked where no part of the proceedings complained of took place within its territorial jurisdiction. In the present case it was not the decision of the Secretary of State that was being brought under review, but the decisions of the adjudicator and the Immigration Appeal Tribunal. An adjudicator approaches the issue before him de novo and may make his decision after hearing evidence. The fact that the provisions of Schedule 4 of the Immigration and Asylum Act 1999 apply throughout the United Kingdom does not mean that the Court of Session has jurisdiction in a situation where both the adjudicator and the Tribunal have sat outwith Scotland.

[11] The Advocate General then turned to the petitioner's second principal submission which was to the effect that the Court of Session and the High Court in England have concurrent jurisdiction in all United Kingdom asylum cases. However, it was clear from the statutory provisions that the Tribunal system operates in two separate jurisdictions, and the statutory scheme recognised the existence of the territorial jurisdiction of the Court of Session. Only in Lord Advocate v R.W. Forsyth Ltd. had the Court of Session exercised its supervisory jurisdiction over a body sitting outside Scotland but that had been a quite exceptional case, and Lord Dunpark's observations in Bank of Scotland v Investment Management Regulatory Organisation Limited had been obiter. In Majaed, the Court of Appeal had held that where the adjudicator had sat in Scotland, an application for judicial review of the Immigration Appeal Tribunal's refusal to grant leave to appeal should go to the Court of Session in Scotland. Where an adjudicator had sat in Scotland, the Court of Session had pre-eminent jurisdiction and where an adjudicator had sat in England, it was the High Court or the Court of Appeal which had the pre-eminent jurisdiction. Even if there could be exceptional immigration cases in which there was extra-territorial jurisdiction, this was not such a case. It had been suggested on behalf of the petitioner that the Court of Session and the English court had concurrent jurisdiction in immigration cases in the United Kingdom, and that where a dispute as to which court was the more appropriate forum arose in any particular case, the principle of forum non conveniens should be invoked. However, this would be likely to result in uncertainty as well as increased delay and expense. The correct principle to be applied was that the Court of Session would exercise its supervisory jurisdiction in every immigration case where the adjudicator sat in Scotland, even though the Immigration Appeal Tribunal in London had refused leave to appeal. This rule has the advantage of providing potential litigants with certainty as to the appropriate forum in any particular case. While it might be possible to envisage exceptional circumstances in which the Court of Appeal could exercise jurisdiction in a particular case where the adjudicator had sat in Scotland, it was the Court of Session which had the pre-eminent jurisdiction. Where the adjudicator had sat in England, as in the present case, it was the High Court and the Court of Appeal in England which had the pre-eminent jurisdiction.

[12] It was further submitted that, on any view, it would not be necessary in this case to reduce the decision of the adjudicator. If the petition was successful, it would be sufficient simply to reduce the decision of the Immigration Appeal Tribunal. However, on the whole matter, the reclaiming motion should be refused.

Decision
[13] As we have indicated, the issue for determination in this case is whether the supervisory jurisdiction of the Court of Session in immigration cases extends to a case where the adjudicator sat in England and leave to appeal was refused by the Immigration Appeal Tribunal sitting in London. That issue must be considered in the context of the statutory provisions which govern applications for asylum in the United Kingdom. The Immigration and Asylum Act 1999 provided that an appeal by an asylum seeker against a refusal by the respondent to grant the application for asylum should be heard by an immigration adjudicator. If the adjudicator decided to refuse the appeal, the applicant was entitled to seek leave to appeal from the Immigration Appeal Tribunal. If the Tribunal made a final determination of an appeal, any party to the appeal could bring a further appeal to "the appropriate appeal court" on a question of law material to that determination. If the appeal was from the determination of an adjudicator made in Scotland, the appropriate appeal court was the Court of Session. In any other case, it was the Court of Appeal (paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 and section 103 of the Nationality, Immigration and Asylum Act 2002). Accordingly it is clear that in the case of a statutory appeal from the Immigration Appeal Tribunal, leave to appeal having been granted, the Court of Session had jurisdiction only if the adjudicator sat in Scotland, but it was common ground that the fact that the Court of Session was the appropriate appeal court in relation to the statutory appellate structure if the adjudicator sat in Scotland could not by itself have the effect of determining whether the Court of Session has a supervisory jurisdiction at common law in a case such as the present. However, the statutory appeal provisions are, in our opinion, of relevance and we agree with the observations of Brooke, L.J. in Majead 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.

[14] It is also not without significance that, with effect from June 2003, section 101 of the 2002 Act provides that a party to an application to the Immigration Appeal Tribunal for permission to appeal against the determination of an adjudicator on a point of law may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law. Any such application is to be determined by a single judge on the basis of written submissions, and the judge's decision is to be final.

[15] The question which we have to determine in this case involves the extent of the supervisory jurisdiction of the Court of Session in immigration cases. It is clear that the Court of Session has a supervisory jurisdiction over inferior courts and tribunals which exercise their functions in Scotland (Moss' Empires Limited v Assessor for Glasgow, supra, and Brown v Hamilton District Council, supra. In Moss' Empires Limited Lord Shaw of Dunfermline made the following observations (at page 11):

"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".

[16] We have no doubt, and we did not understand it to be disputed, that the Court of Session's supervisory jurisdiction extends to judicial review of determinations made by an adjudicator in Scotland. However, one of the principal questions raised before us was whether the supervisory jurisdiction of the Court of Session was restricted to bodies acting within Scottish territory, or whether it was capable of extending to a determination made by a body in another part of the United Kingdom. That question, albeit a jurisdiction question arising under the common law of Scotland, has to be decided in the present case in the context of the statutory provisions which are applicable to the United Kingdom. It is also, in our view, relevant to note that the issue before us has arisen sharply since the Immigration Appeal Tribunal has been sitting only in London, whereas prior to February 2002 it sat in London and Glasgow.

[17] We were referred by both parties to Lord Advocate v R.W. Forsyth Limited, supra, where a company had applied under section 55 of the Taxes Management Act 1970 for a determination postponing payment of certain amounts of corporation tax. The application for postponement was heard by a Special Commissioner sitting in England. The company's dissatisfaction with his decision, which postponed only a small part of the tax which had been assessed, led to a stated case being prepared for the Opinion of the Court of Session. However, in the event the company did not proceed with the stated case and instead applied to the High Court in London for judicial review of the Special Commissioner's decision to refuse postponement of the tax due. Lord Wylie held that the decision of the Commissioner, although sitting in England, on a Scottish tax case had to remain subject to the supervisory jurisdiction of the Court of Session. Lord Wylie observed (at page 459) as follows:

"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 at p. 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."

[18] In that case it appears that all the proceedings relating to the assessments in question, other than the application for postponement, had taken place in Scotland and two actions at the instance of the Commissioners of Inland Revenue concluding for payment of tax due were already pending in the Court of Session.

[19] We were also referred to the case of R v Commissioner for the Special Purposes of the Income Tax Acts, ex parte R.W. Forsyth Limited, supra, which related to an application to the High Court for judicial review of the decision of the Special Commissioner. It was held by Macpherson J. that, as tax and its assessment was a United Kingdom matter and the jurisdiction of a Special Commissioner extended throughout the United Kingdom, the court was not prepared to say that it had no jurisdiction to countenance an application for judicial review of the Commissioner's decision. However, the only connection with England in the taxpayer's case was the postponement application before the Special Commissioner and, as a matter of common sense and convenience and in the interests of comity, the proper tribunal for any review of the Special Commissioner's decision was the Scottish court. Macpherson J. stated that he was glad to echo Lord Wylie's conclusion, though for different reasons, and to say that the whole matter should as a matter of both convenience and common sense be left with Scotland. He stated (at page 1040) as follows:

"As a matter of common sense and convenience it is in my judgment perfectly clear that all activity in this case should be in Scotland. This is particularly so when I remind myself that the whole feel of the case is Scottish, and that the matter would never have crossed the border unless counsel and solicitors' convenience and their request had tempted it to London for this limited application. That application could and would otherwise have been heard in Glasgow, and counsel for the taxpayer company rightly made the important unqualified concession that if it had been heard there he could not have expected the English court to hear him on an application for judicial review."

[20] It was also drawn to our attention that there has been a recent decision of the Court of Appeal which clearly has an important bearing on the issue which we have to decide. In Majead v Secretary of State for the Home Department, supra, the decision sought to be impugned was a decision of the Immigration Appeal Tribunal dated 20 March 2002 whereby the claimant was refused permission to appeal against the determination of an immigration adjudicator sitting in Glasgow. On 7 February 2002 the adjudicator had dismissed the claimant's appeal against the decision to issue a removal direction. In the Administrative Court Jackson J. refused the claimant permission to apply for judicial review on the ground that the court had no jurisdiction to deal with the matter. In his judgment Jackson J. made the following observations:

"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."

[21] The claimant appealed against that decision. He was an Iraqi citizen of Kurdish origin who had arrived in Dover in July 2000. He had been interviewed in connection with his asylum claim in Leeds but he had later been "dispersed" to Scotland with the result that his appeal was heard by an adjudicator in Scotland. The Court of Appeal dismissed the claimant's application. It considered the two R.W. Forsyth Limited cases and Brooke L.J. observed (in paragraph 10) as follows:

"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".

[22] Brooke L.J. went on to make the following observations (in paragraphs 13 and 19):

"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.

...

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."

[23] The Lord Ordinary took the view that, at common law, questions of jurisdiction depend on whether or not the court can pronounce a judgment which will be effective within its territory and that the need for the power to enforce applies as much to the supervisory jurisdiction of the Court of Session as to its other areas of jurisdiction. As the court may require to pronounce orders against a decision-maker, his presence within the jurisdiction is necessary to enable the court's orders to be enforced (Bank of Scotland v Investment Management Regulatory Organisation Limited, supra). The Lord Ordinary reached the conclusion that in this case the adjudicator, who sat and determined the case in England, was not subject to the jurisdiction of the court because any judgment of the court could not be enforced against him. Further, the Court of Session did not have jurisdiction over the Immigration Appeal Tribunal sitting in London as the court would be unable to enforce its decision against the Tribunal.

[24] Counsel for the petitioner submitted to us that, as the statutory immigration scheme is nationwide, the Court of Session and the High Court and the Court of Appeal in England have concurrent supervisory jurisdiction in applications for judicial review in the case of determinations by immigration adjudicators and the Immigration Appeal Tribunal made in Scotland or England and that if, in any particular case, there was a dispute as to which court should exercise its supervisory jurisdiction, then the matter should be resolved by the application of the principle of forum non conveniens. We do not agree. We can see no legal justification for the contention that the Scottish and English courts have concurrent jurisdiction in applications for judicial review over immigration adjudicators sitting in either country, and the Immigration Appeal Tribunal sitting in London. On the contrary, the statutory framework strongly suggests discrete jurisdictions in the higher courts. Moreover, as a practical consideration, it seems to us that, in the case of applications for judicial review in immigration cases, it is in everyone's interests that parties should know to which court an application should be made. We consider that the suggestion that, if there was a dispute in any case as to what was the appropriate forum, the matter would require to be resolved by the application of forum non conveniens, would be likely to result in a significant degree of uncertainty amongst practitioners as well as additional delay and expense.

[25] Having considered all the submissions made to us, and all the authorities to which we were referred, we have reached the following conclusions:

(1) The supervisory jurisdiction of the Court of Session clearly extends to a

determination of an adjudicator sitting in Scotland.

(2) Where an adjudicator has heard an appeal in Scotland and made a

determination, and the Immigration Appeal Tribunal, which now sits only in London, determines to refuse leave to appeal, we are satisfied that, in so far as the determination of the Tribunal is subject to judicial review, the Court of Session has supervisory jurisdiction. An adjudicator is entitled to hear evidence and consider an appeal de novo. The merits of the appeal are dealt with by the adjudicator and when these proceedings take place in Scotland we do not consider that the fact that an application for leave to appeal is subsequently refused by the Immigration Appeal Tribunal, which now sits only in London, apparently for reasons of administrative convenience, has the effect of ousting the supervisory jurisdiction of the Court of Session. To that extent we do not consider that in immigration cases the supervisory jurisdiction of the Court of Session is limited to its territorial jurisdiction. While the Lord Ordinary stated that the Court of Session would not have the power to enforce its decisions against the Immigration Appeal Tribunal sitting in London, we find it difficult to envisage that a situation could arise in practice where the Tribunal would refuse to give effect to an order made by the Court of Session in such circumstances. In reaching this conclusion we have had regard to the statutory appeal scheme which provides that where an adjudicator makes a determination in Scotland and the Immigration Appeal Tribunal hears a substantive appeal, a further appeal on a point of law lies only to the Court of Session. There is thus a plain nexus in law between the Court of Session and the Immigration Appeal Tribunal whenever the latter exercises its functions in relation to determinations made by adjudicators in Scotland. The Tribunal is in use to give effect to the decisions of the Court of Session in statutory appeals originating from such determinations. There is no reason to suppose that it would not also consider itself bound to give effect to that Court's orders in judicial review proceedings with a like origin. If that be so, then effectiveness - which, rather than territoriality itself, is the true restraint on the arrogation of jurisdiction - is secured. As Jackson J. observed in Majead, it would be absurd if in any particular case an appeal from the Immigration Appeal Tribunal was to go to the Court of Session whereas an application for judicial review of a refusal to grant permission to appeal had to be heard by the High Court in London. On the assumption, however, that in applications for judicial review in immigration cases the Court of Session and the English courts have concurrent jurisdiction, we are satisfied that in cases where the adjudicator sat in Scotland the Court of Session has the pre-eminent jurisdiction. We are confirmed in that view by the decision, and the reasoning, of the Court of Appeal in Majead. At the same time we accept, as Brooke L.J. observed in Majead (at paragraph 13), that it may be that in a real emergency it might be desirable for the High Court to exercise jurisdiction and make an appropriate order, although that would have to be a very exceptional case.

(3) In a case where an adjudicator has sat and made a determination in England,

we are satisfied that the supervisory jurisdiction of the Court of Session does not extend to such a determination. If, in such a case, the Immigration Appeal Tribunal sitting in London refuses leave to appeal, then a fortiori the supervisory jurisdiction of the Court of Session does not extend to the determination of the Tribunal. In our opinion, the fact that the respondent is domiciled in Scotland and England (section 46 of the 1982 Act) and the immigration system is common to both countries does not have the effect of conferring supervisory jurisdiction on the Court of Session in a case where the adjudicator sat in England. If, contrary to the view which we have expressed, the Court of Session and the English courts have concurrent jurisdiction in relation to applications for judicial review in immigration cases, we have no doubt that applications where the adjudicator sat in England should go to the High Court or the Court of Appeal and not to the Court of Session.

[26] In the present case the adjudicator sat and determined the petitioner's appeal in England and the Immigration Appeal Tribunal, sitting in London, refused leave to appeal. In our opinion, for the reasons which we have endeavoured to give, the supervisory jurisdiction of the Court of Session does not extend to either of these determinations, and the Lord Ordinary reached the correct conclusion.

[27] We would only add that we are in full agreement with the approach of the Court of Appeal in Majead. Having regard to the decision in Majead and the similar approach which we have taken in this case, there should be no doubt in applications for judicial review in immigration cases as to the court to which an application should be made.

[28] For the foregoing reasons we shall refuse the reclaiming motion.