Factual and Procedural Background
The Plaintiff, a national of Albania, claimed asylum in the UK on 13 February 2023. The Home Office refused the Plaintiff's application on 8 January 2024 and certified the protection and human rights claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. This certification precluded the Plaintiff from appealing the decision to the First-tier Tribunal under section 82 of the 2002 Act, on the basis that the claims were considered wholly lacking in substance and bound to fail. The Plaintiff sought judicial review of this certification decision. The procedural issues before the court included whether the judicial review application should be transferred from the Court of Session to the Upper Tribunal, and whether to grant permission to proceed with the review.
Legal Issues Presented
- Whether the judicial review application should be transferred from the Court of Session to the Upper Tribunal, and at what stage such transfer should occur.
- Whether permission to proceed with the judicial review should be granted.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff was neutral on the issue of transfer but acknowledged the appropriateness of remitting the case to the specialist Upper Tribunal, as Parliament has empowered the court to transfer responsibility in suitable cases.
- The Plaintiff noted the loss of the right to appeal further without permission if transferred, but did not consider this a decisive factor against transfer.
Respondent's Arguments
- The Respondent opposed discretionary transfer, contending the Court of Session was better placed to conduct the review.
- The Respondent emphasized that transfers of this nature are unusual in Scotland, suggesting the Upper Tribunal might be less familiar with such cases.
- Regarding permission, the Respondent argued certain grounds lacked prospects of success, particularly those predicated on the human rights claim not having been certified.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Tsiklauri v Secretary of State for the Home Department 2020 SC 495 |
Certification review principles: the court asks the same question as the certifying decision maker regarding whether claims are clearly unfounded. |
Guided the court to focus on whether the protection and human rights claims were bound to fail, rather than procedural adequacy of the decision letter. |
| Fathabadi v Advocate General [2020] CSOH 83 |
Support for the certification review principles. |
Reinforced the approach to judicial review of certification decisions. |
| ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 |
Only one rational answer exists on whether a claim is clearly unfounded. |
Supported the court's streamlined approach to certification review. |
| L v Angus Council [2011] CSOH 196 |
Factors relevant to discretionary transfer: novelty, importance, party views, cost, and expedition. |
Informed the court’s consideration of whether to transfer the petition to the Upper Tribunal. |
| A, Petitioner [2014] CSOH 27 |
Discretionary transfer factors and rejection of loss of appeal rights as a reason to refuse transfer. |
Supported the decision to transfer despite loss of direct appeal rights without permission. |
| R (on the application of Hankinson) v Revenue and Customs Commissioners [2009] EWHC 1774 (Admin) |
Consideration of delay and procedural difficulties in transfer decisions. |
Used as persuasive guidance on procedural factors relevant to transfer. |
| Lauchlan and O'Neill v Scottish Ministers 2022 SC 125 |
Judicial review is designed to provide a speedy and effective remedy. |
Supported the court’s assessment of delay and procedural management in transfer. |
| Wightman v Secretary of State [2018] CSIH 18 |
Permission to proceed is not an insurmountable barrier and must be granted if there is a real prospect of success. |
Guided the court’s permission determination. |
Court's Reasoning and Analysis
The court began by outlining the established certification review principles, which require the court to ask the same question as the certifying decision maker: whether the protection and human rights claims are so clearly unfounded that they are bound to fail before the First-tier Tribunal. It noted that procedural or detailed reasoning challenges are generally irrelevant in this context.
Regarding transfer, the court applied the statutory framework under the Tribunals, Courts and Enforcement Act 2007 and the Rules of the Court of Session. It confirmed that the petition met the conditions for discretionary transfer as the subject matter was not a devolved Scottish matter and did not fall within any mandatory transfer class.
The court weighed relevant factors including the nature of the issues, cost, delay, procedural difficulties, and the parties’ views. The streamlined and well-established nature of the certification review test favored transfer to the Upper Tribunal, which has specialist expertise in asylum and immigration appeals and would be well placed to assess whether claims are bound to fail. Cost considerations suggested potential savings to the public purse if heard in the Upper Tribunal. There was no evidence of delay or procedural difficulties that would preclude transfer. Although the Respondent opposed transfer based on usual practice and the potential unfamiliarity of the Upper Tribunal with such cases, the court found this insufficient to outweigh statutory provisions enabling transfer.
On the timing of transfer, the court interpreted the relevant statutory provisions as allowing it discretion to determine permission before transfer. Given that submissions and arguments on permission had been heard, and considerations of delay and expense, the court decided to determine permission prior to transfer.
In considering permission, the court applied the statutory test requiring a sufficient interest and a real prospect of success. It accepted that the Plaintiff was a victim of modern slavery and found that certain grounds of the petition (paragraphs 49 to 55) met the test for permission, while others (paragraphs 44 to 48), including those based on an alleged failure to certify the human rights claim, lacked prospects of success. The court emphasized that the certification decision clearly included the human rights claim as clearly unfounded, and challenges to the adequacy of reasons or rule application in this context were not relevant under certification review principles.
Holding and Implications
The court GRANTED permission to proceed with judicial review on the grounds specified in paragraphs 49 to 55 of the petition and REFUSED permission on the grounds in paragraphs 44 to 48.
The court further ordered that the judicial review petition be TRANSFERRED to the Upper Tribunal for determination of the grounds on which permission was granted.
The direct consequence is that the Upper Tribunal will now conduct the substantive judicial review applying the certification review principles. No new precedent was established by this decision; rather, it applied existing statutory and procedural frameworks to the particular circumstances of this case.