In JR v Advocate General for Scotland [2024] CSOH 64, the Court of Session has encouraged greater use of the powers to transfer a judicial review to the Upper Tribunal and laid out what factors might be relevant in making that decision.

In Scotland, all applications for judicial review are commenced in the Court of Session unlike in England where such applications can be brought either before the Upper Tribunal or in the High Court. The Tribunals, Courts and Enforcement Act 2007 allows for transfers of applications for judicial review from the Court of Session to the Upper Tribunal in certain cases. In practice, that power is almost never used.

The facts

JR was an Albanian national and victim of trafficking. He had applied for humanitarian protection on the grounds that he feared persecution from money lenders in Albania and he would be insufficiently protected by the state. He also argued that male victims of trafficking in Albania might be discriminated against there and that he would face very significant obstacles to integration.

His human rights and asylum claims were certified as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002. That meant JR had no right of appeal against the decision to refuse his claims. An application for judicial review was lodged at the Court of Session challenging the certification.

The principles to be applied

The parties were agreed that in cases challenging certification, a court will ask itself the same question as the person who made the decision i.e. is the claim ‘clearly unfounded’. Unlike traditional judicial review principles, the court cuts through the underlying layers of decision making and decides the issue for itself. This is because “the question of whether or not a claim is clearly unfounded is susceptible to only one rational answer” (ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6).

Relevant considerations for transfer

The power to transfer applications for judicial review to the Upper Tribunal in Scotland is, in most cases, discretionary (section 20(1)(b) of the 2007 Act provides the court may transfer an application if certain conditions are met).

In general, the court considered that the most significant factor in considering any discretionary transfer was the nature of issues for determination.  In cases challenging certification, the Upper Tribunal would be well-experienced in considering the underlying merits of a claim because it had experience of dealing with asylum and humanitarian protection cases regularly.

Another relevant factor was cost, including to the public purse. Most migrants bringing judicial review applications are funded by the Scottish Legal Aid Board and they are exempt from paying court fees. In such cases, for those legally aided migrants, cost was likely to be a neutral factor. But the court noted that the Court of Session etc Fees Order 2022 provided that there was a fee of £225 per 30 mins of a hearing which could result in significant fees where hearings are listed for a day, which many are. Whereas in the Upper Tribunal, there was a fixed fee of £847 for a substantive hearing. It might be that in some cases, cost was a factor to be considered especially because the Home Office was also publicly funded.

Delay was also considered to be relevant. There was a paucity of information about the timescale for transferred applications but the Home Office suggested in England similar cases took 12 – 16 weeks for listing of a hearing. But the court noted that since the Upper Tribunal would be bound to apply the same principles that apply to the Court of Session when considering a transferred claim, one such principle was that judicial review is designed to provide a speedy and effective remedy to challenge decisions of public bodies and there was nothing to suggest that cases would take longer if transferred.

The court considered that the views of the parties was also a relevant factor. The fact that a party simply did not was a transfer was not a weighty factor since it would make the transfer provisions redundant. But if there was a relevant reason such as complexity or nature of the dispute, it might be relevant not to transfer if the parties do not support it. In this case, JR was neutral, and the Home Office was opposed to the transfer (but without any obvious reason).

Any procedural difficulties will also be relevant. In this particular case, no such difficulty arose but it might be a relevant factor in other cases. For example, if there were cases where an ongoing appeal and judicial review required to be dealt with concurrently (e.g. where a human rights claim was not certified and attracted a right of appeal but an asylum was certified and had no right of appeal), it might be appropriate to transfer since the tribunal system would be able to deal with both matters.

The court concluded that the case should be transferred to the Upper Tribunal for determination.

A radical departure?

This represents a radical departure from established practice where applications for judicial review in Scotland start and almost invariably end in the Court of Session. In this case, parties had only been able to find one reported decision of a successful discretionary transfer from 2014 (A, Petitioner [2014] CSOH 27]). Although there is a part of the court form for judicial review applications which requires parties to explain whether a transfer to the Upper Tribunal is required, in practice, even if a discretionary transfer was possible, most judges did not insist on that transfer taking place.

It will be interesting to see whether the Court of Session continues to transfer such challenges on a more frequent basis. Although some judges in the Upper Tribunal in Scotland are resident judges, some judges do not frequently sit in Scotland. There are some subtle but important distinctions in judicial review in Scotland compared to England. One risk of increasing the number of transfers is therefore more appeals based on a misunderstanding or misapplication of Scottish judicial review principles.