(back to preceding text)

    26.  In the present case the adjudicator made his decision in England. But in this case there are, unquestionably, exceptional circumstances. In April 2002, when Mr Tehrani consulted Scottish solicitors after the adverse decision of the IAT, he was still in time to make an application to the High Court for permission to apply for judicial review. Instead his solicitors instructed counsel to draft a petition for judicial review in the Court of Session, seeking reduction of the decisions of the adjudicator and the IAT. A petition was duly drafted and lodged in the Court of Session.

    27.  That was, at the time, an unexceptionable course. Mr Tehrani was living in Scotland, and his solicitors had previously been instructed in successful judicial reviews of decisions of adjudicators sitting in England to which no plea to the jurisdiction of the Court of Session had been taken by the Secretary of State. By the time the plea was taken by the Secretary of State in the present case it was too late for Mr Tehrani to apply of right to the High Court for permission to apply for judicial review. The three month time limit had by then expired. In these circumstances it would be unconscionable if Mr Tehrani were now to be deprived of a remedy on jurisdictional grounds. I would allow this appeal accordingly. The Court of Session should exercise its jurisdiction in this case. The procedural history makes this an exceptional case for which the appropriate forum is the Court of Session.

    28.  For completeness I add, in agreement with my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, that Part III of the Civil Jurisdiction and Judgments Act 1982 does not assist Mr Tehrani on the question of jurisdiction. Judicial review of tribunals is excluded from the scope of Schedule 8 by paragraph 12 of Schedule 9. Moreover, for the reasons cogently explained by Lord Rodger of Earlsferry, the argument based on the 1982 Act misses the jurisdictional point in issue in the present case.

LORD HOPE OF CRAIGHEAD

My Lords,

    29.  The appellant, Behrouz Tehrani, is a citizen of Iran who seeks asylum in the United Kingdom. He left Iran on 18 March 2001 and entered the United Kingdom on 24 March 2001. He applied for asylum on the same day and was given temporary admission pending determination of his application. He was provided with hotel accommodation in London. On 19 April 2001 he was allocated accommodation in Glasgow. He has resided in Glasgow continuously since that date. On 11 May 2001 the respondent refused his application. By a determination dated 21 February 2002 his appeal against that refusal was dismissed by an adjudicator. He then sought leave to appeal to the Immigration Appeal Tribunal. By a determination dated 22 March 2002 his application for leave was refused by the tribunal.

    30.  In August 2002 the appellant presented a petition for judicial review by the Court of Session of the determinations of the adjudicator and the Immigration Appeal Tribunal. The first order was granted on 22 August 2002. The respondent took a preliminary plea of no jurisdiction. This was on the ground that the hearings before the adjudicator and the Immigration Appeal Tribunal took place, and their determinations were made, in England. On 15 January 2003 this plea was debated at a First Hearing before the Lord Ordinary, Lord Philip. On 3 April 2003 the Lord Ordinary sustained the plea of no jurisdiction and dismissed the petition. On 27 April 2004 an Extra Division (Lords Kirkwood, Hamilton and Macfadyen) refused a reclaiming motion against the Lord Ordinary's interlocutor. The appellant now appeals to your Lordships' House.

    31.  This case raises a novel and important issue about the territorial extent of the supervisory jurisdiction of the Court of Session in cases where the jurisdiction is sought to be exercised over a person or body whose decisions affect persons in Scotland but which carries out its work throughout Great Britain or, as the case may be, throughout the United Kingdom. The legislation with which we are concerned in this case extends throughout the United Kingdom, as it extends to Northern Ireland: see section 170(6) of the Immigration and Asylum Act 1999 ("the 1999 Act"). So, in the interests of brevity, I shall refer to such a person or body simply as a United Kingdom body.

    32.  It is not in doubt that a decision by a United Kingdom body which affects persons in Scotland and is made in Scotland is subject to the supervisory jurisdiction of the Court of Session. The question which arises in this case is whether the supervisory jurisdiction is available where the United Kingdom body makes a decision affecting persons in Scotland but that decision is made in England. If that question is answered in the affirmative, a further question arises. This is how the issue of jurisdiction is to be resolved where, because the decision was made there, it can also be judicially reviewed in England. These questions have not had to be considered hitherto, because it was not the respondent's practice to challenge the jurisdiction of the Court of Session in cases where determinations affecting asylum-seekers in Scotland were made by adjudicators or by the Immigration Appeal Tribunal sitting in England. It was not until the issue of jurisdiction was raised by Lord Hamilton in May 2002 during the course of a First Hearing in an unreported case, that he began to take this plea.

    33.  Two other applications for judicial review by asylum seekers were reported to the Inner House by the Lord Ordinary under Rule of Court 34.1. On the joint motion of the parties they were heard by the Extra Division together with this case: 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. They were cases where the adjudicator's determination was made in Glasgow where the petitioners were resident, but the Immigration Appeal Tribunal's determination was made in England. The respondent did not take a plea of no jurisdiction in those cases. It was admitted on his behalf by the Advocate General that the Court of Session's supervisory jurisdiction extended to the Immigration Appeal Tribunal's refusal of leave to appeal against the determination of an adjudicator sitting in Scotland: Struk, 2004 SLT 468, 470K-L. The Extra Division was satisfied that the Court of Session was entitled to exercise its supervisory jurisdiction over a determination of the Immigration Appeal Tribunal made in England refusing leave to appeal against a determination of an adjudicator sitting in Scotland, even though the petitioner did not seek judicial review of the determination by the adjudicator: Struk, p 471B-C.

    34.  The Advocate General did not suggest that the concession that was made in Struk and Mfumu was mistaken or that those cases had been wrongly decided. It should however be noted that the Lord Ordinary was told by counsel for the Advocate General in Struk that the respondent's position was that where the determination of the adjudicator was made in Scotland an application to the Immigration Appeal Tribunal should be treated as taking place in Scotland also: 2004 SLT 468, 470E-F. This resort to fiction was a necessary consequence of the respondent's basic argument, which is that the question whether a decision is subject to the supervisory jurisdiction of the Court of Session has to be resolved by looking to the place where the decision was made.

    35.  Mr Bovey QC for the appellant submitted that the Court of Session had concurrent jurisdiction with the High Court in England over the determinations which were made by the adjudicator and the Immigration Appeal Tribunal in this case. He said that this was the position at common law. He then submitted that, if this was not so, the Court of Session had jurisdiction by virtue of sections 20 and 46 of and rule 1 of Schedule 8 to the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act"). Section 46(1) provides that for the purposes of the Act the seat of the Crown as determined by that section shall be treated as its domicile. Rule 1 of Schedule 8 provides that, subject to the following rules of that Schedule, persons shall be sued in the courts for the place where they are domiciled. It should be noted that the question whether the Court of Session had jurisdiction under the statute was not dealt with either by the Lord Ordinary or by the Extra Division, as it was not in dispute before them that the provisions of that Act did not apply to the review of decisions of tribunals: 2004 SLT 461, 463D-E.

    36.  In my opinion the question whether the Court of Session has jurisdiction always has to be considered in the first instance with reference to what is provided for by Part III of the 1982 Act. On the one hand there is the code of jurisdictional rules in Schedule 8 on which Mr Bovey relies. On the other hand there is the exclusion from Schedule 8 of the proceedings listed in Schedule 9 whose jurisdictional rules are continued in existence by section 21(1). The code of jurisdictional rules in Schedule 8 replaces the common law where these rules apply. The proceedings listed in Schedule 9 continue to be regulated by the common law in so far as they are not subject to rules provided for by statute. I propose therefore to consider into which Schedule this case falls, and to what effect, before examining the issues raised by Mr Bovey's submission that jurisdiction in this case is regulated by the common law.

    37.  The background to the Scottish provisions of the 1982 Act is to be found in the Report of the Scottish Committee on Jurisdiction and Enforcement, whose chairman was the Hon Lord Maxwell, which was published in June 1980 ("the Maxwell Committee"). That report has, of course, to be read together with the Brussels Conventions, including the 1968 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and the 1971 Protocol annexed to that Convention which the 1982 Act was designed to implement: see the relevant definitions in section 1(1) of the 1982 Act. For convenience of reference the 1968 Convention, as amended, is set out in Schedule 1 to the 1982 Act: see section 1(2)(a). Article 1 provides that the Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal, but that it shall not extend to, among other things, administrative matters.

    38.  The Maxwell Committee was of the opinion that the opportunity should be taken to codify the rules of jurisdiction in civil proceedings for Scotland. In para 10.10 of their Report the Committee summarised the principal features of the rules whose adoption they recommended for the purposes of this exercise. Among these features were the following:

"(1) These Rules would be applied by the Scottish courts, with certain exceptions referred to below, wherever the Convention does not apply, whether because the subject-matter of the dispute is excluded from the Convention or because the defender is not domiciled in another Contracting State.

(2) The Rules would in effect supersede the Scottish common law rules of jurisdiction in civil proceedings and the statutory provisions of a general character relating to such proceedings (for example, section 6 of the Sheriffs Courts (Scotland) Act 1907 as amended and the Law Reform (Jurisdiction on Delict)(Scotland) Act 1971…."

    39.  As has already been mentioned, among the matters which fall outside the scope of the Convention are what it describes in article 1 as "administrative matters". In paras 13.200 - 13.201 of their Report the Maxwell Committee set out their recommendations with regard to the matters of this kind:

"13.200  We also think it appropriate that the same rules of jurisdiction should apply to administrative matters as to other civil actions. Under our present law, unlike that of most contracting states, no distinction is normally drawn between proceedings involving administrative authorities and other civil proceedings, and the same rules of jurisdiction apply. We therefore recommend that the rules proposed in this chapter should apply, both the rules derived from the convention and the additional rules not derived from the convention. The additional rules should apply even though the defender is domiciled in another contracting state: see 13.198.

13.201    In this context it is important to note that:-

(b)  these rules of jurisdiction are only intended to supersede existing common law rules of jurisdiction and statutory provisions of a general character. Thus statutory rules conferring jurisdiction in respect of specific administrative matters will not be superseded."

    40.  The provisions of the 1982 Act relating to Scotland are set out in Part III of the Act. Section 20(1) provides that, subject to Council Regulation (EC) No 44/2001 of 22 December 2000, to Parts I and II and to the following provisions of Part III, Schedule 8 has effect to determine in what circumstances a person may be sued in civil proceedings in the Court of Session or in a sheriff court. It is common ground that Part II of the Act, which allocates jurisdiction within the United Kingdom where the subject matter of the proceedings is within the scope of the Regulation, does not apply to this case. The Regulation does not extend to administrative matters, and proceedings on appeal from, or for review of, decisions of tribunals are excluded from the rules for allocation set out in Schedule 4 by para 4 of Schedule 5 read together with section 17(1) of the 1982 Act.

    41.  Rule 1 of Schedule 8 to the 1982 Act provides that, subject to the following rules of that Schedule, persons shall be sued in the courts for the place where they are domiciled. Mr Bovey submits that applications to the supervisory jurisdiction of the Court of Session are civil proceedings for the purposes of the 1982 Act. So rule 1, read together with section 46(1) and section 46(3)(a) of the 1982 Act, applies to this case. Section 46(1) provides:

"For the purposes of this Act the seat of the Crown (as determined by this section) shall be treated as its domicile."

Section 46(3)(a) provides that the Crown in right of Her Majesty's government in the United Kingdom has its seat in every part of, and in every place in, the United Kingdom.

    42.  If Part III of the 1982 Act had stopped there, the answer to the question of jurisdiction in this case would have been provided by the provisions on which Mr Bovey relies. I have no difficulty in accepting, as a general proposition, that proceedings which are brought in the Court of Session for the exercise of its supervisory jurisdiction are civil proceedings within the meaning of section 20(1) of the 1982 Act. Prior to 30 April 1985, when the procedure under rule 260B of the Rules of the Court of Session 1965 (now Chapter 58 of the Rules of the Court of Session 1994) was brought into effect by Act of Sederunt (Rules of Court Amendment No 2) (Judicial Review) 1985 (SI 1985/500), the procedure that was adopted in proceedings of this kind were indistinguishable from that used for civil proceedings generally.

    43.  Brown v Hamilton District Council 1983 SC (HL) 1 and Stevenson v Midlothian District Council 1983 SC (HL) 50, for example, in which Lord Fraser of Tullybelton's comments on the need for reform of the procedure are to be found at pp 49 and 59 respectively, were both cases in which the supervisory jurisdiction was being invoked against a local authority. No one would have doubted at that time that these cases, of which many other examples can be given, fell within the description of civil proceedings. In each of these two cases the local authorities were called defenders. The conclusions in the summons that were served on them included, in Brown's case, conclusions for declarator, implement and damages and, in Stevenson's case, conclusions for declarator, reduction and interdict. Orders to this effect are all orders that the court now has power to make under rule 58.4 of the 1994 Rules. The fact that rule 58.3(1) provides that an application to the supervisory jurisdiction of the Court of Session must be made by petition for judicial review does not alter the fact that they are civil proceedings within the meaning of section 20(1) of the 1982 Act. In West v Secretary of State for Scotland 1992 SC 385 it was observed that, since rule 260B of the Rules of Court 1965 was introduced by Act of Sederunt without any further enabling power having been conferred on the court by general legislation, it was a procedural amendment only which did not and could not alter in any respect the substantive law.

    44.  But Part III of the 1982 Act did not stop there. Section 21(1), which is headed "Continuance of certain existing jurisdictions", provides:

"Schedule 8 does not affect -

(a)  the operation of any enactment which confers jurisdiction on a Scottish court in respect of a specific subject-matter on specific grounds;

(b)  without prejudice to the foregoing generality, the jurisdiction of any court in respect of any matter mentioned in Schedule 9.

Schedule 9, which is headed "Proceedings excluded from Schedule 8", contains a list of proceedings of various descriptions which includes the following:

"12.  Appeals from or review of decisions of tribunals."

Section 50 provides that, unless the context otherwise requires, "tribunal" means a tribunal of any description other than a court of law. In my opinion any person or body exercising functions of a judicial character, other than a court of law, falls within this description. It is plain that the Immigration Appeal Tribunal is a "tribunal" within the ordinary meaning of that word. I would hold that its ordinary meaning includes an adjudicator exercising functions under the 1999 Act.

    45.  What then is the effect of the 1982 Act as regards appeals from or review of decisions of tribunals? In my opinion the answer to the question whether the Court of Session has jurisdiction in such proceedings must be found in the statutory rules, if any, which identify the court which has jurisdiction in respect of appeals from or the review of decisions of the particular tribunal or, if there are no such rules, in the common law. Para 13.201(b) of the Report of the Maxwell Committee suggests that it was the fact that such proceedings are normally the subject of statutory rules that led to the decision to include appeals from or review of decisions of tribunals in Schedule 9. But the wording which Schedule 9 uses to describe proceedings of that kind is unqualified. It does not restrict this exclusion from Schedule 8 to proceedings by way of appeal or review that are provided for by statute.

    46.  Mr Bovey said that, as the process now known as judicial review was not part of the law of Scotland in 1982, it was not within the scope of the word "review" in paragraph 12. He referred to the observation by the Lord Chancellor, Lord Lyndhurst, in Campbell v Brown (1829) 3 W & S 441, 448, quoted in West v Secretary of State for Scotland 1992 SC 385, 396, that jurisdiction was given to the Court of Session, not to review the presbytery's judgment on its merits, but to take care to keep the court of presbytery within the line of its duty and conform to the provisions of the Act of Parliament. But the Lord Chancellor's words should not be taken out of their context. The word "review" in paragraph 12 of Schedule 9 must be taken to mean something different from the word "appeal". Its ordinary meaning includes proceedings by way of judicial review, irrespective of whether a jurisdiction in respect of such proceedings is conferred by statute.

    47.  Provision is made in Part III of Schedule 4 to the 1999 Act for appeals from an adjudicator to the Immigration Appeal Tribunal and, in its turn, from the Immigration Appeal Tribunal to what para 23(1) refers to as "the appropriate appeal court". Para 23(3) of the Schedule provides:

" 'Appropriate appeal court' means -

(a)  if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and

(b)  in any other case, the Court of Appeal."

The exclusion of appeals from tribunals from Schedule 8 to the 1982 Act enables effect to be given to the rules relating to appeals laid down by the statute. This means that the Court of Session has jurisdiction if the appeal is from the determination of an adjudicator made in Scotland. In any other case it does not. But the 1999 Act makes no provision for the judicial review of determinations by an adjudicator or by the Immigration Appeal Tribunal. It leaves this to the common law. So it is to the common law that one must go to discover the rules which identify the circumstances in which proceedings for the judicial review of determinations by these tribunals may be brought in the Court of Session.

    48.  I take as my starting point the purpose for which the supervisory jurisdiction of the Court of Session may be exercised. It is to ensure that the person or body to which a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or other instrument does not exceed or abuse that jurisdiction, power or authority or fail to do what it requires: see West v Secretary of State for Scotland 1992 SC 385, 412-413. But, for the reasons that I have already explained, it is only where the Court of Session is being asked in the exercise of its supervisory jurisdiction to review the decision of a tribunal within the meaning of paragraph 12 of Schedule 9 to the 1982 Act that the question arises whether it has jurisdiction to do so at common law. In all other cases of judicial review the rules that regulate its jurisdiction are those set out in Schedule 8 to the 1982 Act.

    49.  Where tribunals exercise a jurisdiction that is given to them by statute, it is to the statute under which that jurisdiction is exercised that one must look to see whether the supervisory jurisdiction of the Court of Session is available. The supervisory jurisdiction has its origins in the principle that, where an excess or abuse of the power or jurisdiction conferred in a decision-maker is alleged, the Court of Session in the exercise of its function as the supreme court has power to correct it: West, p 395. For that jurisdiction to be exercised however there must be some connection between Scotland, within which the functions of the Court of Session as the supreme court are exercised, and the power or jurisdiction conferred on the decision-maker. As a general rule the Court of Session has power to intervene where the excess or abuse of power gives rise to a wrong done or a harm suffered in Scotland. But it can only do so in the case of a statutory tribunal which exercises its functions in Scotland or whose proceedings are governed by Scots law. Rule 2(m) of Schedule 8 to the 1982 Act, which provides that a person may be sued in the Court of Session in proceedings concerning an arbitration which is conducted in Scotland or in which the procedure is governed by Scots law, gives effect to the same principle. A decision that is taken outside Scotland under the law of another part of the United Kingdom is not subject to the supervisory jurisdiction of the Court of Session just because the effects of its decision are felt within Scotland.

    50.  The part of the United Kingdom within which a tribunal is constituted will normally determine the system of law in accordance with which the tribunal is required to operate. In the present case however the appellate authorities for which provision was made in Part IV of the 1999 Act (now replaced by the unified appeal system provided for by section 26 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004) exercised a jurisdiction that extended to all parts of the United Kingdom. They were designed to enable the United Kingdom to fulfil its obligations under the 1951 Convention relating to the Status of Refugees, irrespective of the place within the United Kingdom that the asylum seeker happened to be for the time being. The decisions which they were required to make had implications throughout the United Kingdom. Decisions to grant or to refuse leave to enter or to remain are made with reference to the United Kingdom as a whole, not to part of it.

    51.  No rules were laid down by the statute to regulate the place where, or the system of law by reference to which, the appellate authorities were to perform their functions. The places where they exercised their functions during the relevant period appear to have been those where it was most convenient for them to be exercised. The normal administrative practice of the Immigration Appellate Authority was to assign an appeal by an asylum seeker to an adjudicator at the hearing centre nearest to his address as stated on the notice of appeal. One of the hearing centres for this purpose was located in Glasgow. The hearing before the adjudicator in the appellant's case took place in Durham to suit the convenience of the appellant's solicitor. A letter that was sent to the appellant in Glasgow on 21 February 2002 by the Immigration Appellate Authority told him that any application for leave to appeal to the Immigration Appeal Tribunal was to be submitted to the Secretary to the Immigration Tribunal at an address in Loughborough. The letter that was sent to him in Glasgow on 28 March 2002 informing him that leave to appeal had been refused was sent from an address of the Immigration Appeal Tribunal in London. This was the address to which, according to a notice at the foot of the letter, any further correspondence to the tribunal was to be sent. This appears also to be the place where all applications for leave to appeal were dealt with by the tribunal, irrespective of the place where the determination by the adjudicator was made.

    52.  It cannot be said on these facts that the exercise by the appellate authorities of their functions under the 1999 Act in this case was carried out under a system of law that applied in one part of the United Kingdom only. Furthermore, the appellant was at all relevant times living in Glasgow. So the adverse consequences to him of the decisions that were taken by the appellate authorities in England under a jurisdiction that was exercisable throughout the United Kingdom were liable to be felt by him in Scotland. I would hold that this was a sufficient connection with Scotland to bring their decisions within the supervisory jurisdiction of the Court of Session. But, as the appellate authorities were sitting in England when these decisions were taken, it appears that they were subject also to the concurrent jurisdiction of the High Court in England and Wales. This raises the question whether, as there was a concurrent jurisdiction that was available to be exercised in England and Wales as well as in Scotland, the supervisory jurisdiction of the Court of Session ought to be exercised in this case.