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Tehrani (AP) (Appellant) v. Secretary of State for the Home Department (Respondent) (Scotland)
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LORD NICHOLLS OF BIRKENHEAD
1. Legislation operating throughout the United Kingdom sometimes makes provision for appeals to appellate tribunals which, like the legislation itself, operate throughout the whole of the United Kingdom. Similarly with legislation operating throughout Great Britain. Employment, taxation and immigration are instances. In these fields the primary remedy available to a citizen aggrieved by a departmental decision is to appeal against the decision in accordance with the appeal structure set out in the legislation. In the ordinary course that is the route an aggrieved party should follow.
2. Occasionally a citizen wishes to challenge a decision of a tribunal in respect of which he has no right of appeal. He wishes to apply for judicial review of the tribunal's decision. But to which court should he make his application? If the taxation affairs of a Scottish taxpayer are dealt with by a commissioner sitting in England, should the taxpayer apply to the Court of Session in Edinburgh or the High Court of Justice in London?
3. Take a more complicated example. Take a case where a claimant for asylum is living in Scotland. An adjudicator in Glasgow dismisses his appeal against the Secretary of State's refusal of asylum. The Immigration Appeal Tribunal sitting in London then refuses the claimant permission to appeal. Clearly an application for judicial review of these two decisions should be heard by one court, either by the Court of Session in Scotland or the High Court in England. It would make no sense if the Court of Session were to review the decision of the adjudicator and the High Court were to review the decision of the Immigration Appeal Tribunal. But which court should this be, and on what principle should the choice be made? These are the questions arising on this appeal.
The present case: the factual background
4. The appellant, Mr Behrouz Tehrani, is a citizen of Iran. On 24 March 2001 he flew into London City airport and claimed asylum. He was given temporary admission pending a decision on his application and provided with temporary hotel accommodation in London. He stayed there for a month until the Secretary of State required him to move to Glasgow under the statutory dispersal scheme. On 19 April 2001 Mr Tehrani was allocated accommodation in a local authority flat in Glasgow. Since then he has lived continuously in Glasgow.
5. On 11 May 2001 the Immigration and Nationality Directorate of the Home Office at Croydon refused Mr Tehrani's application. The directorate sent Mr Tehrani a letter setting out the reasons why the Secretary of State was not satisfied Mr Tehrani had established a well-founded fear of persecution. On 16 May an immigration officer of the UK Immigration Service at London City airport gave Mr Tehrani formal notice refusing him leave to enter the United Kingdom. Mr Tehrani was told that directions would be given for his removal on a scheduled flight to Iran upon a date and time to be arranged.
6. Two days later, on 18 May 2001, notice of appeal was given on behalf of Mr Tehrani by his representative, Mr Latif Zamani. At the time Mr Tehrani was unable to speak or read English. The hearing of the appeal by an adjudicator took place some months later, on 5 February 2002, in Durham. Mr Tehrani travelled from Glasgow for the hearing. He was represented by a Mr Sharif who lived in Sheffield. The Durham venue was arranged, it seems, for Mr Sharif's convenience. Mr Sharif had asked for the hearing to be transferred from London to the hearing centre at Leeds. Durham is a satellite of the Leeds' hearing centre. Mr Tehrani was not consulted about these arrangements.
7. On 21 February 2002 the adjudicator dismissed Mr Tehrani's appeal. Mr Tehrani sought leave from the Immigration Appeal Tribunal (the 'IAT') to appeal against the adjudicator's determination. On 22 March 2002 the tribunal, sitting in London, refused leave to appeal. This refusal decision was not susceptible of appeal.
8. In August 2002 Mr Tehrani lodged a petition with the Court of Session seeking reduction of the adjudicator's determination and the IAT's refusal of leave to appeal. On 3 April 2003 the Lord Ordinary (Philip) sustained the Secretary of State's plea to the jurisdiction of the court: 2003 SLT 808. On 27 April 2004 an Extra Division of the Inner House, comprising Lords Kirkwood, Hamilton and Macfadyen, refused a reclaiming motion by Mr Tehrani: 2004 SLT 461. Mr Tehrani has now appealed to your Lordships' House. Whether there is substance in Mr Tehrani's petition is not a matter which has been canvassed before your Lordships or in either of the courts below. The issue is solely one of the jurisdiction of the Court of Session to entertain the petition.
9. The relevant statutory provisions in force at the material times can be noted shortly. The impugned decisions of the adjudicator and the IAT were made under the Immigration and Asylum Act 1999 ('the 1999 Act'). Section 69 makes provision for appeals to an adjudicator against refusals of leave to enter where removal in consequence of the refusal is said to be contrary to the Refugee Convention. A person who is dissatisfied with an adjudicator's determination may appeal to the IAT with the leave of that tribunal: paragraph 22 of Schedule 4 to the 1999 Act, and rule 18(1) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000/2333).
10. The legislation makes provision for further appeals to the 'appropriate appeal court' on a question of law. The identity of the appropriate appeal court depends upon where the determination of the adjudicator was made. If the adjudicator's determination was made in Scotland the appropriate appeal court is the Court of Session. Otherwise the appropriate appeal court is the Court of Appeal: paragraph 23 of Schedule 4 to the 1999 Act.
11. The 1999 Act also makes provision for the existence of the IAT and for the appointment of adjudicators: sections 56 and 57. The IAT and adjudicators sit at such times and in such places as the Lord Chancellor directs. In practice there are a dozen or so main hearing centres throughout the United Kingdom. One of these is Glasgow. Adjudicators sit from time to time in Glasgow. The IAT sits mainly in London. The venue of these hearings is determined largely by questions of practical convenience, either the administrative convenience of the adjudicator or the IAT or the convenience of the claimant or his lawyers.
12. Since April 2005 the two tier system of appeals to adjudicators and the IAT has been replaced by a single tier body, the Asylum and Immigration Tribunal.
13. Problems similar to those arising in the present case have come before the courts of England and Scotland on several occasions. The jurisprudence has developed and matured. In Rutherford v Lord Advocate 1931 SLT 405 a taxpayer living in Scotland was assessed to tax in respect of director's fees paid to him by a company carrying on business in Warwickshire. The assessment was confirmed by general commissioners for the county of Warwick. The tax not having been paid, execution was levied on the taxpayer's furniture in Scotland. The taxpayer applied to the Court of Session to set aside this diligence. Lord Fleming held the Court of Session could not set aside the determination of the commissioners. For that the taxpayer must resort to the English courts. But it was competent for the taxpayer to invoke the 'preventive jurisdiction' to stop the diligence of which he complained: p 408.
14. In the Forsyth litigation a Scottish taxpayer appealed against assessments to corporation tax and applied to a special commissioner for postponement of payment. The postponement applications were due to be heard in Glasgow, but for the convenience of the company's lawyers and at their behest the venue was changed to London. The applications were largely unsuccessful. The company then applied to the High Court for judicial review of the special commissioner's postponement decisions. Meanwhile the Crown had issued summonses in the Exchequer Court of the Court of Session seeking payment of the tax due. The Lord Ordinary (Wylie) granted decree in favour of the Crown in both proceedings. The basis of his decision seems to have been that the High Court had no jurisdiction in the matter. The decision of the special commissioner on a Scottish tax case, although sitting for administrative convenience in London, remained subject to the supervisory jurisdiction of the Scottish court. Confusion could result if more than one court had jurisdiction: Lord Advocate v R W Forsyth Ltd (1986) 61 TC 1.
15. The Crown then applied to the High Court to strike out the judicial review proceedings. Macpherson J was not persuaded the English court lacked jurisdiction. But he stayed the judicial review proceedings on the ground that as a matter of commonsense and convenience all activity in the case should be in Scotland: R v Commissioner for the Special Purposes of the Income Tax Acts, Ex p R W Forsyth Ltd  1 All ER 1035.
16. Sokha v Secretary of State for the Home Department 1992 SLT 1049 was an immigration case. The petitioner had entered and remained in England illegally. He was later detained in prison in England under the authority of an immigration officer. The petitioner then initiated proceedings in the Court of Session for judicial review of the decision to detain him in prison. He did so in the belief he had a better prospect of obtaining conditional release from a Scottish court than an English court. The Lord Ordinary (Prosser) dismissed the petition. The Secretary of State accepted that the Scottish court had jurisdiction. But the judge held the Scottish courts were a wholly inappropriate forum, and the English courts the obvious and natural forum, for any scrutiny of the decisions to detain the petitioner and keep him in detention.
17. The case of R (Majead) v Immigration Appeal Tribunal  EWCA Civ 615 (1 April 2003) was another immigration case. The claimant arrived at Dover and claimed asylum. The Secretary of State refused the claim. Mr Majead was then 'dispersed' to Scotland. Unlike the present case, where Mr Tehrani's appeal was heard by an adjudicator in England, Mr Majead's appeal was heard by an adjudicator in Scotland. Mr Majead's application for leave to appeal to the IAT was dismissed by the IAT sitting in London. Jackson J refused Mr Majead permission to apply for judicial review, on jurisdictional grounds. His decision was upheld by the Court of Appeal:  EWCA Civ 615. Brooke LJ said Parliament has made clear its wish that the courts of Scotland should have ultimate responsibility in relation to appeals to the IAT from adjudicators in Scotland. Without deciding the point he noted that in a 'real emergency' the High Court might exercise jurisdiction over IAT decisions relating to appeals from adjudicators in Scotland but that would have to be a 'very exceptional case': paragraphs 10 and 13.
18. The next case, chronologically, is the present case. The Lord Ordinary held that the supervisory jurisdiction of the Court of Session did not extend to a review of the decisions of the adjudicator or the IAT. Both of them had sat outside Scotland, and therefore any judgment of the court could not be enforced against them: 2003 SLT 808. In the Inner House the Extra Division upheld the Lord Ordinary's decision but their reasoning was different. Lord Kirkwood delivered the opinion of the court. The Extra Division rejected the contention that the Scottish and English courts have concurrent jurisdiction in applications for judicial review over adjudicators sitting in either country and the IAT sitting in London, but expressed full agreement with the approach of the Court of Appeal in the Majead case: 2004 SLT 461, paras 24 and 27.
19. On the same day, 27 April 2004, the Extra Division applied the same reasoning in two other cases when holding that the Court of Session had supervisory jurisdiction where the adjudicator had sat in Scotland but the IAT sitting in London had refused permission to appeal: Struk v Secretary of State for the Home Department 2004 SLT 468 and Mfumu v Secretary of State for the Home Department (unreported) 27 April 2004.
20. Finally, in Shah v Immigration Appeal Tribunal  EWCA Civ 1665, 22 November 2004, the Court of Appeal clarified, and amplified, the reasoning in the Majead decision. Sedley LJ said the jurisdiction of the English and Scottish courts is concurrent but should be exercised, save in very exceptional circumstances, by the supervisory court of the jurisdiction in which the adjudicator sat: paragraph 8. Carnwath LJ agreed. He observed that the English court has jurisdiction to review a decision of the IAT, sitting as it does in London yards away from the Royal Courts of Justice and hundreds of miles away from the Scottish border, but other than in exceptional circumstances practice and comity demand the English courts should give way to the Scottish courts where the adjudicator's decision was made in Scotland: paragraph 27.
21. Broadly stated, under the common law the superior courts of a country have jurisdiction (legal power) to review the decisions of inferior courts and tribunals and other governmental and public bodies exercising powers conferred by the laws of that country. The superior courts are charged with the task of seeing that these inferior courts and tribunals and others carry out their duties and that in making their decisions they do not exceed or abuse their powers. In the ordinary course decisions falling to be reviewed in this way will be made within the jurisdiction (the territorial reach) of the superior court by inferior courts or tribunals or others present within this jurisdiction.
22. This general principle must be handled circumspectly where the issue concerns the jurisdiction (legal powers) of courts of the constituent parts of the United Kingdom. The different parts of the United Kingdom cannot be treated as foreign countries when the decision sought to be reviewed was made by a tribunal or minister exercising powers under laws applicable throughout the United Kingdom. In the present case that is the position. The adjudicator and the IAT were implementing laws, and exercising powers, applicable nationwide. The adjudicator and the IAT are United Kingdom tribunals. In Executors of Soutar v James Murray & Co Ltd  IRLR 22, 23, para 8, Lord Johnston said the border between England and Scotland is of no relevance to the jurisdiction of employment tribunals; their jurisdiction is national. The same is true of adjudicators and the IAT.
23. The present case goes further. A notable feature of the 1999 Act is the two-tier structure of adjudicators and the IAT. Even in the absence of this two-tier structure the supervisory jurisdiction of the courts of the constituent parts of the United Kingdom could hardly depend definitively upon the particular place where, as a matter of convenience, the decision of the tribunal under review was made. But self-evidently, given this two-tier feature, it is impossible to apply the approach that in asylum cases the legal powers of judicial review of the Court of Session and the High Court are governed rigidly by the place within the United Kingdom where an adjudicator or the IAT respectively chose to make the decision under review. As already noted, that approach would make no sense. It would make no sense because adjudicators and the IAT often sit in different parts of the United Kingdom when dealing successively with the same case. When they do so it would be absurd if an application for judicial review of the adjudicator's decision had to be made to the courts of one part of the United Kingdom and an application for judicial review of the IAT's decision in the same case had to be made to the courts of another part of the United Kingdom. Identification of the appropriate court to review the two decisions in a single case must be capable of operating better than this.
24. To my mind the nationwide nature of the legislation and the two-tier appeal structure of adjudicators and the IAT point to the conclusion that, in the same way as adjudicators and the IAT have jurisdiction (legal power) throughout the United Kingdom, so the superior courts of the constituent parts of the United Kingdom have jurisdiction to review decisions of adjudicators and the IAT wherever made. Once it is recognised that adjudicators and the IAT are properly to be characterised as United Kingdom tribunals, there can be no occasion for attempting to confine the supervisory jurisdiction of the courts of England or Scotland by rigid rules or, even less, by rules whose bounds are vague. In respect of decisions of these tribunals the Court of Session and the High Court have concurrent jurisdiction. Decisions of the Court of Session and the High Court made in exercise of this concurrent jurisdiction are binding throughout the United Kingdom.
25. The existence of jurisdiction is one matter, the exercise of the jurisdiction is another. In the ordinary course the courts of England and Scotland apply the common law Spiliada principle of 'appropriateness' in deciding whether to exercise jurisdiction where the courts of more than one country have jurisdiction in respect of a claim: see Spiliada Maritime Corporation v Cansulex Ltd  AC 460. A court will decline to exercise jurisdiction if there is available an alternative forum more appropriate for deciding the dispute in question. In the present context Parliament has itself indicated, in the 1999 Act, the basis on which the courts of Scotland or England have jurisdiction in respect of appeals. As noted above, the determining factor is where the adjudicator made his decision. The place where the IAT made its decision is of no consequence. In my view this legislative indication of which court is the appropriate appellate court should normally be applied by the courts by analogy on applications for judicial review of decisions of adjudicators or the IAT. Save in exceptional circumstances the venue of the adjudicator's decision should be determinative of the 'appropriate forum' test. In the result therefore I agree with the views expressed by the Court of Appeal in Shah v Immigration Appeal Tribunal  EWCA Civ 1665.