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Scottish immigration appeal incorrectly lodged in England, nobody notices for four years


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It is a good thing KP (Pakistan) & Anor v The Secretary of State for the Home Department [2019] EWCA Civ 556 was handed down on 2 April rather than a day earlier, or I would have had the unenviable task of approaching the Court of Appeal to ask whether one of its judgments was an April Fool joke. Here’s the gist:

KP, who lives in Glasgow, appealed against a Home Office refusal of leave to remain. The appeal was heard in Glasgow, as was a further appeal to the Upper Tribunal decided in July 2014. From there, KP appealed to the Court of Appeal.

I pause at this point to observe that the Court of Appeal serves only England and Wales. Scotland, although part of the United Kingdom, is a separate jurisdiction with its own legal system. This will not be news to many lawyers, but KP’s original solicitors — who were “closed down following intervention by the Solicitors Regulation Authority” in late 2017 — evidently did not realise this.

In fact, nobody noticed the problem at all between July 2014 and March 2019, when barrister Katherine Apps received the papers from the Home Office and pointed it out.

Lord Justice Bean found that the Court of Appeal for England and Wales did not have jurisdiction to hear a Scottish case. He did express sympathy for KP, given that the form telling people how to appeal

is a trap for the unwary in a Scottish or Northern Irish case, being sent from London but without words such as “The Court of Session is specified as the relevant appellate court in this case”.

The Government Legal Department, which did not raise the jurisdiction issue over the course of four years, had the cheek to apply for its costs.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.