The recent House of Lords judgement in Tehrani v Secretary of State for the Home Department ( UKHL 47) has investigated the issue of whether an action for judicial review must be raised in the jurisdiction in which the decision to be reviewed was taken, or whether it is possible to bring the action in the different jurisdiction where the petitioner ("T") is resident.
The jurisdiction issue arose in this case as immigration law is governed by a single statute that applies throughout the UK and does not specify to which court any petition for judicial review should be made. In this case, the House of Lords had to consider whether the Court of Session had jurisdiction on account of T's residence in Glasgow, or if the appropriate forum was the High Court in England, as all the decisions of which review was sought had been made by a panel sitting in England.
The Court held that, for the Court of Session to have jurisdiction in these proceedings two factors must exist. First, the person against whom judgement is sought, in this case the Home Secretary, must be subject to the jurisdiction of the court; and, secondly, the proceedings must be suitable for judicial determination and not the subject of the exclusive jurisdiction of another court.
In this case, it was concluded that as the Home Secretary in relation to immigration matters has jurisdiction throughout the UK, so the superior courts of the constituent parts of the United Kingdom have jurisdiction to review his decisions.
Having satisfied themselves that the Court of Session did have jurisdiction, the House of Lords turned to consider whether that court was the most appropriate forum to hear the issue. They acknowledged, however, that once the Court of Session was found to have jurisdiction, it could not decline to exercise that jurisdiction, unless it was in the interests of justice to do so.
The Court accepted that the location of the decision maker would normally indicate the correct jurisdiction in which to review its decision, but that was not conclusive of the issue. For example, where the petitioner is resident in Scotland, it will rarely be more convenient for him to have to raise a case in England. In any event, as the petitioner in this case had missed the deadline for raising judicial review proceedings in England as a result of his having made the application to the Court of Session, there was now no other competent tribunal with jurisdiction. Therefore, in this case, there was no other Court with jurisdiction to hear the review and the Court of Session could not refuse to exercise their jurisdiction.
It is clear from this decision that the appropriate jurisdiction on review, in the absence of a statutory rule, is not conclusively determined by where an initial decision is taken. If a person, such as Mr Tehrani, can demonstrate a sufficient connection to a jurisdiction, those courts may hear the petition. Where that jurisdiction is Scotland, the court must exercise that jurisdiction in all but the most exceptional circumstances, thereby raising the possibility of "forum shopping" by an aggrieved party in light of the different limitation periods in Scotland and England. If a connection to Scotland can be established, proceedings could be raised there where the much shorter deadline for raising proceedings in England has been missed. Conversely, with dedicated administrative courts and an often quicker process, seeking a sufficient connection with England could bring benefits to a would-be petitioner.
This case will be relevant in particular to Professional Bodies which exercise a disciplinary jurisdiction across the United Kingdom, where there is no specific applicable statutory provision to jurisdiction in the event of review by the Courts. The possibility of review, and the question as to whether any such review might be heard by the English or Scottish Courts, may have a bearing on the decision as to where disciplinary proceedings are heard.
- In certain areas, both the English and Scottish Courts may arguably have jurisdiction in the event of judicial review.
- The appropriate choice of Court will depend upon a number of factors, including (but not only) the location of the decision maker whose decision is being taken into account.
- Both the English and Scottish Courts respectively may have perceived attractiveness to a prospective party to judicial review, and an element of "forum shopping" is conceivable in certain circumstances.
- Questions of judicial review and jurisdiction may be relevant to consideration by UK professional bodies as to the location of disciplinary proceedings.