It seems that the UK’s three separate legal jurisdictions are continuing to cause problems in immigration cases.  

Back in 2019 there was the Scottish immigration appeal incorrectly lodged in England, which nobody noticed for four years. A couple of years later it was re-iterated in another case that English courts can’t hear immigration appeals from Scotland. And earlier this year the Upper Tribunal had to address the difficult question of whether a lawyer can appear remotely at a hearing in a different part of the UK to the one they’re qualified in: English barristers CAN argue immigration cases in Scotland… so long as they don’t set foot there.

A similar issue has arisen again, this time with the Special Immigration Appeals Commission (SIAC) and Northern Ireland. SIAC only sits in London. What happens when a hearing is held in relation to exclusion of an Irish citizen from the UK for travelling to Syria and aligning with ISIS? Her representatives appeared remotely from Belfast and were only qualified in Northern Ireland. 

Are these “proceedings in England and Wales”, in which case the right of appeal is to the Court of Appeal in England & Wales? Or are they “proceedings in Northern Ireland”, in which case the right of appeal is to the Court of Appeal in Northern Ireland?  

This was what had to be decided in Secretary of State for the Home Department v Smith [2022] EWCA Civ 1445.

The court decided that, in the context of a statutory appeal, the location of the judges is decisive. It is not about determining which court has the greater knowledge of local conditions:

“…that argument is not available because of the plain wording of the statute creating SIAC. SIAC could only sit in London because that is the only place for which the necessary direction had been given. Jay J and his colleagues were sitting at Field House, London when they heard the case and it was from there that the determination was issued. It was therefore made in England and Wales.”

The appeal will therefore be heard in England & Wales.

It is different in judicial review proceedings. In that context, geography is not decisive (see Tehrani v Secretary of State for the Home Department [2007] 1 AC 521). Instead, the test is whether the person has a sufficient connection to the part of the UK they are seeking to litigate in.

This seems like a much fairer and more sensible test to me. If it applied here, the appeal would clearly be in Northern Ireland rather than hundreds of miles away in London.