Court of Session should decide on permission before transferring judicial reviews to the Upper Tribunal

The Upper Tribunal has said that when the Court of Session is transferring judicial reviews to the tribunal, a decision should be made by the court on permission before the matter is transferred. The case is R (EB) v Secretary of State for the Home Department (Scotland; Transfer of claims) [2025] UKUT 412 (IAC) and the headnote reads as follows:

Section 20 of the Tribunals, Courts and Enforcement Act 2007 makes provision for the transfer of judicial review applications from the Court of Session to the Upper Tribunal.  The discretionary transfer of applications in accordance with s20(1)(b) of the 2007 Act from the Court of Session to the Upper Tribunal must be considered on the merits of each case.

Transfer should be limited to those rare cases where the particular issues raised in the application will benefit from the expertise of the Upper Tribunal.

When transfer is contemplated, the question of permission to claim judicial review should, absent good reason, be considered by the Court of Session prior to transfer.

Where an application is transferred, the claim for judicial review will, in most cases, proceed in accordance with the procedural case management directions issued by the Upper Tribunal.