A recent decision of the Divisional Court (R (Rex Cart) (2) U (3) XC v (1) Upper Tribunal (2) SIAC and Others [2009] EWHC 3052) has concluded that decisions of the newly established Upper Tribunal (UT) are not susceptible to judicial review by the High Court save in the most exceptional (and in reality unlikely) cases.

Key points

  • The key issue to be decided in ascertaining whether an institution such as the UT is susceptible to judicial review is: should the institution properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate? Put another way, does the institution constitute in effect an alter ego of the High Court?
  • The UT is an alter ego in that its role at the apex of a new and comprehensive judicial structure ought to be respected and given effect. The UT's judicial review function is highly material to that role's status and authority.
  • The UT's decisions will therefore not be subject to judicial review (save in (as the Court noted) effectively theoretical cases). The only type of appeal available from a decision of the UT will be an appeal to the Court of Appeal on a point of law, although as in the High Court this will be restricted to cases where there is an important point of principle or practice or some other compelling reason.

Background

The proceedings concerned three linked judicial review claims whereby the claimants sought to challenge decisions of the Special Immigration Appeals Commission (SIAC) and the UT.

The UT derives its powers and duties from the Tribunals, Courts and Enforcement Act 2007. This Act effected a major reorganisation of statutory tribunals in the United Kingdom by establishing a two tier tribunal system consisting of a First-tier Tribunal (FTT) and the UT. Both the FTT and the UT comprise a series of chambers. The FTT has six chambers, including a General Regulatory Chamber, a Tax Chamber and a Health, Education and Social Care Chamber, which replace a wide range of tribunals existing prior to the 2007 Act coming into force.

One of the UT's principal functions is to determine appeals on points of law from the FTT. A further principal function of the UT is to exercise what the 2007 Act calls a "judicial review" jurisdiction. Section 15(1) of the 2007 Act empowers the UT to grant any of the forms of relief available in the High Court on judicial review, subject to certain conditions. If it proposes to do so, the UT must apply the same principles as the High Court would apply in a judicial review case.

The principal question in these linked cases was whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to such decisions of SIAC and the UT as were not amenable to any form of appeal. This question (referred to by the Court as "the jurisdiction issue") was heard by the Divisional Court (Lord Justice Laws and Mr Justice Owen) as a preliminary issue.

The jurisdiction issue

The Defendants (the Secretary of State for the Home Department, the Secretary of State for Justice, and the Child Maintenance and Enforcement Commission) respectively contended that both SIAC and the UT were immune from judicial review by virtue of provisions in the primary legislation which set up each entity and which described each as being "a superior court of record".

This argument was rejected by the Divisional Court, which held that the supervisory jurisdiction of the High Court could only be ousted "by the most clear and explicit words". The Court stated that the expression "superior court of record" could not be taken to delineate in principle those courts which were immune from judicial review. Rather, some courts were liable to judicial review and some were not, in most cases because some courts possessed only a limited jurisdiction and some did not.

The Court noted that both SIAC and the UT possessed limited jurisdictions (although in the case of the UT its limits were cast very wide by the 2007 Act), in that they owned only the jurisdiction given to them by statute. The Court stated that the issue to be decided for SIAC and the UT was: should either institution properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court was for that reason inappropriate? Put another way, did either body constitute in effect an alter ego of the High Court?

The Court concluded that SIAC could not be considered to be the alter ego of the High Court, but that UT was an alter ego in that its role at the apex of a new and comprehensive judicial structure ought to be respected and given effect. The UT's judicial review function was highly material to that role's status and authority. The need of proportionality also told in favour of the Court's decision, in that a point first raised in the FTT might otherwise be liable to "something like eight tiers of judicial consideration" if judicial review was available.

On this basis, the Court concluded that the UT was not susceptible to judicial review, save in "the grossly improbable event that UT were to embark upon a case that was frankly beyond the four corners of its statutory remit". The Court noted that such a case would only arise where there had been a wholly exceptional collapse of fair procedure, for example actual bias on the part of the UT.

Comment

The Divisional Court's decision in R(Rex Cart) (2) U (3) XC v (1) Upper Tribunal (2) SIAC and Others clarifies the status of the new UT by establishing that its decisions will not be subject to judicial review (save, as the Court noted, in effectively theoretical cases). This decision emphasises the UT's role as an appeal court of general jurisdiction, at the apex of a new and comprehensive judicial structure. The decision means that the only type of appeal available from a decision of the UT will be an appeal to the Court of Appeal on a point of law, although as in the High Court this will be restricted to cases where there is an important point of principle or practice or some other compelling reason.

The Divisional Court's judgment noted that the intention of the 2007 Act was to bring about a state of affairs in which the function of judicial review is shared between the UT and the High Court. Thus the 2007 Act provides that judicial review applications commenced in the High Court must be transferred to the UT if four conditions are met. The four conditions constitute a sufficiently low threshold that in theory a wide range of judicial review claims could be transferred to the UT, although the likelihood is that transfers will be confined at least in the early stages to categories which have a direct link with subjects already within the scope of the UT's appellate jurisdiction.

It remains to be seen whether the UT will take a different approach to the High Court in dealing with such claims. Although the principles to be applied by both entities are the same and the composition of both entities is very similar (the UT is composed of full-time professional judges of all ranks), the allocation by the UT of claims to judges who are specialists in the particular law and practice under review might lead over time to a difference in approach, although in another context where a specialist tribunal, the Competition Appeal Tribunal, has a statutory judicial review function the Court of Appeal has made clear that the Tribunal should apply conventional administrative law principles - see IBA Healthcare v OFT [2004] EWCA Civ 142.