By the Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 the Asylum and Immigration Tribunal will, on 15 February 2010, be transferred into the First-Tier Tribunal. Despite the closeness of the date set for the transfer the Order has yet to complete its passage through Parliament, and was debated in the House of Lords last week (2 December 2009).
The Order will abolish the Asylum and Immigration Tribunal. However it's unlikely that people with appeals before the Asylum andImmigration Tribunal will be aware of any obvious differences – the Asylum and Immigration Tribunal's "Senior Immigration Judges" will become "transferred in judges of the Upper Tribunal", and its "Immigration Judges" will become "transferred in judges of the First-Tier Tribunal".
Similarly the Asylum and Immigration Tribunal's Procedure Rules will also be transferred over to the First-Tier and Upper TierTribunals - with appropriate amendments made by the Order - and will have effect as if they were Tribunal Procedure Rules.
The Asylum and Immigration Tribunal is just one of many Tribunals to be transferred into the unified structure of Tribunals which was established by the Tribunals, Courts and Enforcement Act 2007.
The reform of the appeals system will be complete when, by amendments to the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008,the Immigration and Asylum Chamber of the First-tier Tribunal and the Immigration and Asylum Chamber of the Upper Tribunal will be created.
Since there will now be a two tier (and not a single tier) appeal system "reconsideration" will become part of history. From February of 2010 anyone wishing to appeal from a determination issued by the First-tier Tribunal will instead apply for permission to appeal to the First-tier Tribunal. If the First-Tier Tribunal refuses permission to appeal it will be possible then to apply for permission to appeal to the Upper Tribunal. If either of the Tribunals grants the application for permission – the Upper Tribunal will hear the appeal.
But what happens if the Upper Tribunal refuses an application for permission to appeal – is there any further remedy against such a refusal?
This is an interesting question because the regime which all this replaces contains what is emphatically a dead end. Currently if a Senior Immigration Judge refuses to make an order for reconsideration it is possible to renew the application for reconsideration to a Judge in the Administrative Court, but if the Administrative Court also refuses to order reconsideration the notice which accompanies that decision makes it clear that that decision is final and cannot be appealed or further reviewed.
(There have been significant cases heard in the Court of Appeal concerning the unusual nature of this jurisdiction but finding it to be lawful – R (on the applications of G and M) v Immigration Appeal Tribunal [2004] EWCA Civ 1731, followed in F (Mongolia) v Secretary of State for the Home Department [2007] EWCA Civ 76).
Despite its awareness of the probability that people will seek to challenge refusals of permission to appeal by the Upper Tribunal the government has not legislated so as to make such a course legally impossible. The explanatory notes to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 say this:
"..the Government stated in its response [to the replies it received during the consultation process] that it will not legislate to ensure that Upper Tribunal decisions are not routinely subject to judicial review but would however keep the matter under review."
So it remains to be seen whether there will be "routine" applications for judicial review of decisions taken by the Upper Tribunal.
However last week (on 1 December 2009) there was an early indication of how the senior courts are likely to view such applications. This was a case involving a multitude of joined appeals raising the shared issue of whether decisions taken by either the Upper Tribunal or the Special Immigration Appeals Commission were or were not subject to judicial review.
(The case is (1) R (on the application of Rex Cart) (2) U (3) XC (Claimants) v (1) Upper Tribunal (2) Special Immigration Appeals Commission (Defendants) & (1) Secretary of State for Justice (2) Secretary of State for the Home Department (3) Public Law Project (Interested Parties) & (1) Child Maintenance & Enforcement Commission (2) Wendy Cart (Interveners) (2009) [2009] EWHC).
Lord Justice Laws said this about the Upper Tribunal ("UT"):
"UT is at the apex of a new and comprehensive judicial structure designed to rationalise and re-organise in a single system the means of adjudication for a multitude of claims previously determined by a variety of disparate tribunals with no common appeal mechanism. Though it is not a court of unlimited jurisdiction, being of course confined to what TCEA [i.e. the Tribunals, Courts and Enforcement Act 2007] gives it, its jurisdiction is very wide. Subject to the fact that some tribunals presently remain outside the fold, it may be said to be an appeal court of general jurisdiction in relation to matters which are consigned to adjudication at first instance by statutory tribunals".
He went on to describe the Upper Tribunal as an alter ego of the High Court - and said that therefore the High Court's supervisory jurisdiction would not extend to the Upper Tribunal's decisions except where the tribunal had embarked upon a case that was beyond its statutory remit or where there had been a wholly exceptional collapse of fair procedure.
In the light of this judgment it seems likely that the government will take the view that it didn't need to legislate a "dead end" to challenges to the Tribunal's decisions.