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Struk, Re Petition for Judicial Review 2004] ScotCS 103 (27 April 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Hamilton Lord Macfadyen	P1266/02 OPINION OF THE COURT delivered by LORD KIRKWOOD in PETITION of IGOR STRUK Petitioner and Reclaimer for Judicial Review of a determination of the Immigration Appeal Tribunal to refuse leave to appeal and ANSWERS for THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent _______

Act: Collins; Anderson Strathern (for Ethnic Minorities Law Centre, Glasgow) (for

Petitioner and Reclaimer)

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

27 April 2004

[1] In this petition Igor Struk (the "petitioner") seeks judicial review of a determination of the Immigration Appeal Tribunal refusing leave to appeal against a determination of an immigration adjudicator.

[2] The petitioner is a Ukrainian national who applied for asylum in the United Kingdom. By letter dated 29 June 2001 the Secretary of State for the Home Department (the "respondent") refused the petitioner's application. The Lord Ordinary was told that at that time the petitioner was living in England, but that he was then required by the respondent to move to Scotland under the statutory dispersal scheme which was then in force. The petitioner appealed against the decision of the respondent and his appeal was heard by an immigration adjudicator in Glasgow in December 2001. The adjudicator made a determination dismissing the petitioner's appeal and that determination was notified to the petitioner on or about 4 January 2002. The petitioner applied to the Immigration Appeal Tribunal for leave to appeal against the determination of the adjudicator but, on 30 January 2002, the Immigration Appeal Tribunal refused leave to appeal. The determination of the tribunal was made in London and was notified to the petitioner on or about 12 February 2002. The petitioner now seeks reduction of the determination of the Immigration Appeal Tribunal.

[3] The petition called before the Lord Ordinary in May 2003 when counsel for the petitioner and counsel for the respondent moved him to report the petition to the Inner House in terms of Rule of Court 34.1. The Lord Ordinary was told that the point at issue was whether, in the circumstances of this case, the Court of Session has jurisdiction to exercise its supervisory jurisdiction over the determination of the Immigration Appeal Tribunal refusing the petitioner leave to appeal. It was submitted by counsel that there was an apparent conflict between the reasoning of Lord Philip in Tehrani v Secretary of State for the Home Department and the reasoning of the Court of Appeal in Majead v. Secretary of State for the Home Department [2003] EWCA Civ 615. In the circumstances the Lord Ordinary agreed to report the following issue to this court:

"In light of the interlocutor and Opinion of Lord Philip in the case of Behrouz Tehrani v Secretary of State for the Home Department 3 April 2003 (currently the subject of a reclaiming motion); and the decision of the English Court of Appeal in R. (in the application of Majead) v Secretary of State for the Home Department [2003] EWCA Civ 615, 1 April 2003, does this Court have jurisdiction to exercise its supervisory jurisdiction over the determination of the Immigration Appeal Tribunal in the petitioner's case dated 30 January and 12 February 2002, being a determination made in England, but refusing leave to appeal the decision of an immigration adjudicator sitting in Scotland?".

[4] This petition came before us at a hearing when we also considered two other petitions for judicial review, one at the instance of Behrouz Tehrani and the other at the instance of Mrs. Salemah Mfumu. In each of the three petitions an application for asylum in the United Kingdom had been refused by the respondent, an appeal to an immigration adjudicator had been refused and the Immigration Appeal Tribunal had refused leave to appeal. In the case of Tehrani, the determinations by the adjudicator and the Tribunal had both been made in England, and the petitioner sought reduction of both determinations. In Mfumu and the present case the determination of the adjudicator had been made in Glasgow and the determination of the Immigration Appeal Tribunal refusing leave to appeal had been made in London. In Mfumu the petitioner sought reduction of both determinations, whereas in the present petition the petitioner only seeks reduction of the determination of the Immigration Appeal Tribunal.

[5] In the present petition the respondent has not taken a plea of no jurisdiction. Indeed, the respondent admits that the court has jurisdiction. The Lord Ordinary was told by counsel for the respondent that the respondent's position was that where the determination of the adjudicator took place in Scotland, an application to the Immigration Appeal Tribunal for leave to appeal should be treated as also taking place in Scotland. On the other hand, if the adjudicator's determination had been made in England, it was submitted that an application for leave to appeal to the Immigration Appeal Tribunal should be treated as also taking place in England. Thus, in Tehrani the respondent had taken a plea of no jurisdiction. The Lord Ordinary was also informed by counsel for the petitioner that the petitioner in the present case was not seeking judicial review of the determination of the adjudicator because of the observations of Lord Macfadyen in Irzekevikius v. Secretary of State for the Home Department, unreported, 14 July 1999.

[6] Before us, counsel for the petitioner submitted that the supervisory jurisdiction of the Court of Session extended to judicial review of the determination of the Immigration Appeal Tribunal refusing the petitioner leave to appeal against a determination of an adjudicator made in Scotland, notwithstanding the fact that the Tribunal's determination was made in London. Counsel contended that the true respondent in these proceedings was the Secretary of State for the Home Department who was domiciled throughout the United Kingdom and was subject to the jurisdiction of the Court of Session by virtue of section 46 of the Civil Jurisdiction and Judgments Act 1982. The respondent had the only real interest in maintaining the decisions of the adjudicator and the Tribunal as they had determined whether or not the petitioner could lawfully be removed from the United Kingdom. The proper constraints upon any abuse of concurrent jurisdiction were to be found in the plea of forum non conveniens (Sokha v. Secretary of State for the Home Department 1992 S.L.T. 1049). If the Secretary of State for the Home Department was not the true respondent, then it was submitted that the Court of Session has jurisdiction at common law. Immigration was a United Kingdom matter: there was no exclusive English or Scottish immigration system. Accordingly, the Immigration Appeal Tribunal was based in both Scotland and England and the Court of Session had jurisdiction over it, notwithstanding that the determination in question in this case was made in England. In any event, the Court of Session had jurisdiction on the basis of the approach taken by the Lord Ordinary in Lord Advocate v. R.W. Forsyth Limited 1990 S.L.T. 458. Because the adjudicator in this case sat in Glasgow, the Court of Session had jurisdiction to exercise judicial review over his determination at common law. The Court of Session did not lose its supervisory jurisdiction over the subsequent decision of the Immigration Appeal Tribunal to refuse leave to appeal simply because the Tribunal made its determination in London. The case remained a Scottish case. In the circumstances we do not feel that it is necessary for us to rehearse in detail all the submissions which were made to us by counsel for the petitioner, particularly as the Advocate General conceded that the Secretary of State for the Home Department was the proper respondent in this case and that the Court of Session's supervisory jurisdiction extended to the Immigration Appeal Tribunal's refusal of leave to appeal against the determination of the adjudicator sitting in Scotland.

[7] Counsel for the petitioner presented a supplementary argument to the effect that the Court of Session had jurisdiction in this case by operation of sections 20 and 46 of, and Rule 1 of Schedule 8 to, the Civil Jurisdiction and Judgments Act 1982. However, in light of the Advocate General's concession that the Court of Session has jurisdiction in this case, and having regard to the reasons set out in the Opinion of the Court in Tehrani, we do not consider that it is necessary to deal with the submissions made to us in relation to the 1982 Act. On the whole matter counsel for the petitioner invited us to answer the issue before us in the affirmative.

[8] For the reasons set out in our Opinion in Tehrani we are satisfied that, where an immigration adjudicator has sat and heard an immigration appeal in Scotland, the supervisory jurisdiction of the Court of Session extends to the judicial review of a determination of an Immigration Appeal Tribunal refusing leave to appeal against the determination of the adjudicator, notwithstanding the fact that the Tribunal's determination was made in London. Thus, in the present case, the Court of Session is entitled to exercise its supervisory jurisdiction over the determination of the Immigration Appeal Tribunal dated 30 January 2002 even though the petitioner does not seek judicial review, and reduction, of the determination of the adjudicator.

[9] In the circumstances we shall answer the issue before us in the affirmative and remit the petition to the Lord Ordinary to proceed as accords.