Presently the Administrative Court has a power to transfer judicial review proceedings into the Upper Tribunal: but rather a sterile one in the immigration field, because of the wording of section 31A of the Seniors (previously, Supreme) Courts Act 1981, which excludes judicial review where it involves a challenge to a decision made under the immigration acts or the British Nationality Act 1981. Now the Government has expressed, via a statement by Lord McNally, its intention to commence Section 53 of the Borders, Citizenship and Immigration Act 2009 with effect from 1 October 2011, opening up the possibility of transfer of judicial review proceedings.

The class of case eligible for transfer will involve challenges to UKBA decision making on fresh claims: where “Condition 5” of section 31A of the 1981 Act applies,  ie where “the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision).” One further step remains: the Lord Chief Justice must make a direction, but Lord McNally, announcing the development, professes inside knowledge that just such a direction is on the cards.

The government’s view is that “the transfer of these judicial reviews will enable fresh claim asylum and immigration human rights applications to be dealt with by judicial members of the Upper Tribunal who have specialist skills and experience in asylum and immigration cases, and will also relieve workload pressure on the High Court, freeing up judicial time to address the high volumes of other types of cases heard in the High Court.”

Various issues will need to be resolved. Will these include all fresh claims, or just those that involve asylum (rather than human rights)? Will the rights of audience be restricted to those with higher rights? And what of conduct of litigation for the government side? Counsel for the Secretary of State have important professional duties, essential if the government’s duties in public law proceedings are to be effectively discharged. Will Presenting Officers now represent in judicial review proceedings? They answer to different standards than Treasury counsel. The training notes for Presenting Officers (Version 2; 1 October 2008) state “the decision you are supporting is not your “instructions” – it is a decision made in another business area in line with the law, the Immigration Rules and UK Border Agency policy that you are advancing in support of the strategic aims of the Agency.”  And the Tribunal has taken the view that they may not necessarily to be imputed with all the obligations of legal professionals, see HK Ethiopia): “26 … There is nothing to say that the rules of the professional bodies controlling the conduct of barristers and solicitors apply to Home Office Presenting Officers.” All this should be the subject of consultation, as it requires amendment to The Tribunal Procedure (Upper Tribunal) Rules 2008.