On 21 August 2013, the Right Honourable Lord Judge, Lord Chief Justice of England & Wales, made a direction which transfers certain immigration and asylum judicial reviews cases from the High Court to the Upper Tribunal. Lord Judge’s direction takes effect from November 2013.
In addition, applications for permission lodged after 9 September 2013; including those where permission has been refused on the papers and oral renewal is pending will also be transferred.
Immigration Judicial Review Cases Excluded from Transfer to Upper Tribunal
Lord Judge has excluded the following cases from transfer and as such these cases will remain to be heard in the High Court:
- Challenges to validity of legislation including immigration rules and including applications for declarations of incompatibility under s.4 of the Human Rights Act 1998;
- Challenges to lawfulness of detention;
- Challenges regarding inclusion of sponsors on the register of sponsors;
- Nationality law and citizenship challenges;
- Welfare support challenges; and
- Challenges to decisions of the Upper Tribunal or SIAC.
Effect of Practice Direction on Current Judicial Review Procedure
Although changes have been made to the practice directions, it seems that new forms are not yet available. Further, the consensus is that the current rules remain ambiguous in relation the choice of venue for lodging judicial review applications; either in the High Court leading to automatic transfer if the Lord Chief Justice’s direction applies or in the Upper Tribunal.
Upper Tribunal Ban on OISC Immigration Advisers
As far as is known, the Home Office will continue to use Treasury Solicitors and Treasury Counsel. OISC advisers (who are not qualified lawyers such as solicitors or barristers) are not authorised to appear before Courts or to manage any cases before courts as this is skilled work. OISC firms will therefore not be allowed to manage or appear in any Upper Tribunal judicial review hearings.