Upper Tribunal considers cross border judicial review proceedings

The case of R (on the application of Kashif) v Secretary of State for the Home Department (JR jurisdiction: applicant in Scotland) IJR [2016] UKUT 00375 (IAC) raised a question of jurisdiction, namely whether a person who is in Scotland ought to be allowed to bring judicial review proceedings in relation to a decision taken by the Secretary of State in England and Wales.

Having given consideration to the existing authorities on this matter, namely Tehrani and Majead, the Vice President of the Upper Tribunal C.M.G. Ockelton stated that ‘the High Court in England and Wales and so the Tribunal under the transfer provisions of ss. 15 and 19 of the Tribunals, Courts and Enforcement Act 2007 has jurisdiction judicially to review a decision of the SSHD wherever taken’ (Paragraph 11).

It was also stated that unless the Court was persuaded that it was not the appropriate forum it should proceed to entertain the claim (Paragraph 12).
The Court further stated that in considering whether or not the court should refuse to accept jurisdiction, the following factors might be taken into account:

• Whether the Tribunal sitting in England and Wales or on the other side of the border has power to reduce a decision of the Minister or to quash it, in which case such a decision would be unenforceable. Therefore, a distinction between the line of cases dealing with refusals of application for permission to appeal already channelled to England or Scotland and decisions relating directly to decisions by a Minister should be made (Paragraph 14);
• Whether the forum which had been chosen should be regarded as appropriate because by the time that it had made its decision on whether to exercise jurisdiction, an applicant would be out of time for a claim on the other side of the border (Paragraph 15);
• Whether there is some other basis upon which the forum chosen by the applicant is not appropriate. If it is only because there is parallel jurisdiction elsewhere, then the claimant’s choice of forum will be the one in which the matter is decided (as indicated in Tehrani) (Paragraph 17).

In the instant case the Tribunal saw no reason for not following the choice of forum of the Applicant:

“So far as this case is concerned we see no reason for not following the choice of the applicant, claimant or petitioner however he is to be described in the various possible fora. So far as jurisdiction is concerned, our judgment is therefore first that the Tribunal has jurisdiction and secondly that there is no reason why it should not exercise it” (Paragraph 19).

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