No mandatory transfer to the Upper Tribunal of judicial reviews challenging public order disqualifications

The High Court has said in a written preliminary decision that it was not bound to transfer a judicial review challenging a public order disqualification in a trafficking case to the Upper Tribunal. The court also exercised its discretion to retain the case within the High Court. The case is ABW v Secretary of State for the Home Department [2024] EWHC 3205 (Admin).

The court pointed out that public order disqualifications apply equally to British citizens as to those subject to immigration control and this was considered to be significant factor in concluding that transfer to the Upper Tribunal was not mandatory:

22. One of the points which carries significant weight in making this determination is the fact that these provisions do not apply only to those who are the subject of immigration control. These provisions also apply to United Kingdom citizens who have been the subject of referral and who have received a reasonable grounds decision. This factor points firmly and clearly in the direction that questions in relation to POD decisions do not fall within the scope of paragraph 1(i). Thus, having taken account of the nature and effect of a decision under section 63 of the 2022 Act to make a POD, I am satisfied that it is not a decision which, pursuant to the Direction, is required to be mandatorily transferred to the Upper Tribunal.

The tribunal decided in the specific circumstances of this case to exercise discretion to keep the case in the High Court, but was explicit in saying that there may be other cases where transfer will be appropriate.