Case No: CO/5426/2012
Neutral Citation Number: [2012] EWHC 3526 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/12/2012

Before:

MR C M G OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUNAL 
(SITTING AS A DEPUTY HIGH COURT JUDGE)
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Between:

	(R) WANKUAMA	Claimant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARMENT	Defendant	

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MR C JACOBS (instructed by FADIGA & CO. SOLICITORS) for the Claimant 
MISS L GIOVANNETTI QC and MISS M GLASS (instructed by the Treasury Solicitor) for the Defendant

Hearing date: Wednesday 7th November 2012
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Judgment
MR C M G OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUAL (SITTING AS A DEPUTY HIGH COURT JUDGE : 
1.	These proceedings, originally challenging a “fresh claim” decision by the Secretary of State, were commenced in the Upper Tribunal. Permission to apply for judicial review was granted by the Upper Tribunal, following which the Secretary of State withdrew her earlier decision and made a new decision, carrying a right of appeal. The claimant thereupon amended his grounds, seeking only a declaration as to the process to be followed in his appeal to the First-tier Tribunal. At the hearing on 7 November 2012 I raised questions of the Upper Tribunal’s jurisdiction. On both parties confirming that they had no objection to the matter being transferred to the High Court and continuing in the High Court forthwith I transferred it and indicated that I would dismiss the application for a judicial review, giving reasons for both decisions at a later date. They are as follows.
Jurisdiction 
2.	It is common ground that the Upper Tribunal’s jurisdiction in a case of this sort derives from the direction of the Lord Chief Justice dated 7 October 2011 and conveniently found at [2012] 1 WLR 16. The effect of that direction, made under s 18(6) of the Tribunals, Courts and Enforcement Act 2007 is that cases falling within the direction may be begun in the Upper Tribunal and, if begun in the High Court are subject to mandatory transfer to the Upper Tribunal.  The cases are as follows:
“Applications calling into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not significantly different from material that has previously been considered”,
as well as any application which, in addition to calling into question such a decision,
“challenges (i) a decision or decisions to remove (or direct the removal of) the applicant from the United Kingdom; or (ii) a failure or failures by the Secretary of State to make a decision on submissions said to support an asylum or human rights claim; or both (i) and (ii); but not if it challenges any other decision.”
3.	Section 18 of the 2007 Act provides at sub-s (2) that if a number of conditions are met, one of which is that the application falls within a class specified by such a direction, “the Tribunal has the function of deciding the application”; but sub-s (3) provides that
 “If the Tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court”.
4.	 There is no doubt that, when the present proceedings were commenced, the application fell within the class specified by the direction. It still fell within the direction at the time when permission was granted by Judge Allen. As I have indicated, it was after that date that the Secretary of State withdrew her original decision, and substituted a decision refusing the claimant’s claim for asylum, but doing so in such a way that he had a right of appeal. Very properly, he thereupon indicated that he no longer proposed to challenge the original decision refusing to treat his claim as a “fresh claim”.
5.	At that point, the application for judicial review fell to be transferred to the High Court under s 18(3). Once the claimant ceased to challenge the “fresh claim” decision,  the  application  for  judicial  review could  not  meet  the  requirements  of  s 18(2). The need for transfer ought to have been noted by the parties, so the transfer could be made in good time: the claim could then have been listed for that hearing in the High Court, as it should have been. As it happened, no harm was done, because, as I have indicated, I was able to proceed with the hearing as in the High Court. 
Decision on the application
6.	It is now to be taken as accepted that the claimant will make an appeal to the First-tier Tribunal. Mr Jacobs’ principal submissions were based on the fate of that appeal, given the introduction by the Secretary of State of new immigration rules, the Statement of Changes in Immigration Rules, HC194, which set out the Secretary of State’s position on a number of matters relevant to the assessment of claims under article 8 of the European Convention on Human Rights.  There has, however, been no change in the statutory structure of appeals. Section 84(1)(c) and (g) of the 2002 Act allow appeals to be brought on human rights grounds, in addition to grounds relying on the immigration rules; and s 86(2) requires the Tribunal to determine any matter raised as a ground of appeal. Mr Jacobs asked me to make a declaration that, in hearing any appeal by the claimant, the First-tier Tribunal was obliged to find facts and to reach its view on any human rights grounds. He said that the Secretary of State’s position, as set out in HC194 and the documents accompanying it, was clearly that the Tribunal would be concerned only with the new rules, and not with any independent view of the strength of a human rights claim.
7.	I decline to make any such declaration, which appears to me to be entirely unnecessary. The First-tier Tribunal is a specialist Tribunal, and may be assumed to be able carry out its functions properly.  If the claimant raises human rights grounds of appeal, the Tribunal is bound to determine them.  To say that the Secretary of State will make any particular submission to the First-tier Tribunal is wholly speculative. If any particular submission is made, the First-tier Tribunal will have to decide whether to accept it. There is an appeal from a decision of the First-tier Tribunal on the ground of an error of law. The first decision by the Upper Tribunal on the new rules, MF (Article 8 – new rules) 2012 UKUT 00393 (IAC) makes it clear that the Tribunal is unlikely, as at present advised, to behave in the way Mr Jacobs claims to fear. In any event, it seems to me that seeking a declaration in the terms suggested by Mr Jacobs is not an appropriate use of the process of judicial review. It was for these reasons that I dismissed the claim.