Wellington Paul Watson, R (on the application of) v The Secretary of State for the Home Department

This is an application for judicial review, made on 29 January 2018, in which the applicant challenges the respondent’s “ongoing decisions” (1) to maintain the certification of the appellant’s human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002; and (2) to refuse to facilitate his return from Jamaica to the United Kingdom, until the order of the Upper Tribunal on 3 May 2019 in which, pursuant to section 25 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal ordered the respondent to revoke the section 94B certificate and take all necessary steps to facilitate and fund the applicant’s return from Jamaica to the United Kingdom as soon as practicable for both parties.

HISTORY

The Upper Tribunal’s order followed its finding that the decision of the First-tier Tribunal in the applicant’s appeal, following a hearing at which the applicant had appeared by video-link from Jamaica, contained an error of law and should be set aside. In essence, the Upper Tribunal concluded that the applicant’s appeal could not be “effective”, as explained by the Supreme Court in Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42; [2017] Imm AR 1299, because his presence in the United Kingdom was necessary for the preparation of an assessment and report in respect of his children, J and RN.

On 31 March 2018, the Upper Tribunal (Lane J, President; Upper Tribunal Judge O’Connor) had stayed the present judicial review proceedings. At that point, the proceedings challenged not only the respondent’s decision to maintain the section 94B certificate in respect of the applicant but also the respondent’s refusal to facilitate the applicants return from Jamaica. The decision to stay the proceedings is reported as R (on the application of Watson) v (1) Secretary of State for the Home Department and (2) First-Tier Tribunal (Extant appeal; s.94B challenge: forum) [2018] UKUT 00165 (IAC); [2018] Imm AR 1094. In so deciding, the Upper Tribunal followed the guidance in AJ (s.94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC); [2018] Imm AR 976. The guidance explained that it is for the First-tier Tribunal to apply the step-by-step approach derived from the judgment of the Supreme Court in Kiarie and Byndloss in order to determine whether an applicant can have an effective appeal, unless he or she is in the United Kingdom.

In the event, as I have mentioned, although the First-tier Tribunal found that the applicant could have such an effective appeal, the Upper Tribunal concluded that the First-tier Tribunal had erred in law.

On 29 April 2019, the applicant applied to lift the stay. On 7 May 2019, Upper Tribunal Judge O’Connor decided that this application should itself be stayed, in the light of the terms of the Upper Tribunal’s order in appeal HU/22903/2016, directing the appellant’s return for the purposes of his appeal being re-made in the Upper Tribunal; and that the application for judicial review in the present proceedings should remain stayed pursuant to the decision of 31 March 2018.

On 18 June 2019, the applicant was returned to the United Kingdom. On 9 January 2020, a hearing took place in the Upper Tribunal (Lane J, President; Upper Tribunal Judge O’Connor) in respect of the re-making in the Upper Tribunal of the decision in the applicant’s appeal in HU/22903/2016. The applicant was present at this hearing. In a decision of 24 February 2020, the Upper Tribunal re-made the decision in the applicant’s appeal by dismissing it.

The applicant applied to the Upper Tribunal for permission to appeal to the Court of Appeal against the re-made decision. The Upper Tribunal refused permission.

On 7 January 2021, the Upper Tribunal (Lane J, President) refused a new application by the applicant for permission to lift the stay on the judicial review proceedings and to amend the relief sought. The Upper Tribunal explained that the reasons why the stay had originally been imposed continued to apply, in that the appeal proceedings were still extant, since the applicant had made a renewed application for permission to appeal to the Court of Appeal. Although the application to amend the grounds presented them as minor in nature, they were far from being so. They would have materially enlarged the scope of the challenge by covering the human rights of the minor children of the applicant. The children were sought to be added as parties, although it did not appear at the time that legal aid for this was currently available.

Permission to appeal was refused by Laing LJ in the Court of Appeal on 21 June 2021. Following that refusal of permission, the Upper Tribunal (Lane J, President; Upper Tribunal Judge O’Connor) ordered on 10 November 2021 that the stay on the judicial review should be lifted. The applicant was given permission to bring judicial review proceedings. The applicant was also given permission to amend his grounds, in order to contend that the Upper Tribunal did not have power under section 25 of the 2007 Act to direct the respondent to make provision for the applicant’s return to the United Kingdom. That ground was also held to be arguable.

Although the present judicial review was brought against decisions of both the respondent and the First-tier Tribunal, Immigration and Asylum Chamber, the applicant’s amended grounds no longer seek to challenge any decision of that Tribunal.

THE SECTION 94B CHALLENGE

For those with an interest in the immigration jurisdiction, the terms of section 94B of the Nationality, Immigration and Asylum Act 2002 are by now well-known. The Secretary of State may certify a human rights claim made by P if she considers that, despite the appeals process not having been begun or not having been exhausted, refusing P entry to, removing P from, or requiring P to leave the United Kingdom, pending the outcome of the appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

In summary, the applicant contends that the certificate made under section 94B in his case was unlawful. It involved a breach of section 55 of the Borders, Citizenship and Immigration Act 2009 and, but for the asserted unlawful action of the respondent, the applicant would have been living with his family in the United Kingdom for the period up to and including the final determination of his statutory appeal against deportation. The section 94 decision and its ongoing maintenance led to a forced separation between the applicant and his British children for a lengthy period, constituting a “colossal and unjustified interference” severing the relationship between the applicant and his elder daughter and preventing the relationship developing between him and his son, who was born shortly after the appellant’s deportation from the United Kingdom.

The qualitative and quantitative nature of the applicant’s relationship with his children during the period of his absence in Jamaica was, thus, damaged, which in turn affected the merits of his appeal against the refusal of his human rights claim, in which he contended that his deportation as a foreign criminal would be contrary to section 6 of the 1998 Act.

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements for ensuring that (inter alia) any function in relation to immigration, asylum and nationality is discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

Section 71 of the Immigration Act 2014, which inserted section 94B into the 2002 Act, provides that the 2014 Act “does not limit any duty imposed on the Secretary of State or on any other person by section 55 of the 2009 Act”.

Before engaging substantively with the applicant’s case in respect of the maintenance of the section 94B certificate, it is necessary to deal with a procedural matter. At the hearing before me on 4 February, Ms Naik QC applied for permission to rely on evidence in the form of a children’s social care initial assessment in respect of J and R. J is the applicant’s daughter born in 2008, whilst R is his son, born in 2016, after the applicant had been removed to Jamaica. The children’s social care records cover a period beginning in July 2008 and ending in December 2021, at which point safeguarding concerns had arisen in relation to R which I understand have led to R living with the applicant.

Mr Kovats QC, for the respondent, opposed the application. He said the material in question was not available to the respondent at any time during the currency of the section 94B certificate. The contents of the material were, furthermore, not matters of established fact.

In response, Ms Naik submitted that the material highlighted issues regarding the mother of J and R, which could have been identified by the respondent, had the latter complied with what Ms Naik described as the duty of enquiry inherent in section 94B, read with section 55 of the 2009 Act.

At the hearing, I decided to admit the material de bene esse. I have concluded that the applicant should be able to rely upon the material, in support of the submission relating to the duty of enquiry. For the reasons I shall give, however, I have concluded that the respondent did not breach any such duty.

I turn to the challenge for the maintenance of the section 94B certificate. The applicant advances this challenge on two bases; namely that the respondent breached Article 8 ECHR rights, in both their procedural and substantive aspects.

I deal first with Article 8 in its procedural aspect. This was the focus of the Supreme Court’s attention in Kiarie and Byndloss. It is important to note that the present judicial review does not challenge the making of the section 94B certificate but, rather, solely the fact that the respondent maintained certification, until the Upper Tribunal directed her no longer to do so. The applicant’s removal to Jamaica was, accordingly, unquestionably lawful. A separate judicial review brought by the applicant to prevent that removal failed. Ms Naik submits that the judgment in Kiarie and Byndloss now establishes that, at the time of the applicant’s removal, any out of country appeal advanced by him would not have been an effective remedy. I find that submission goes too far. Although Lord Wilson had serious doubts about the ability of a person to mount an effective appeal from abroad, he did not conclude that no such appeal was possible. On the contrary, as the subsequent case law makes plain, he identified factors to be considered in deciding, in an individual case, whether an effective appeal could be brought from abroad. That case law has placed the First-tier Tribunal (and, by extension, the Upper Tribunal) at the heart of the mechanism by which the United Kingdom authorities are required to discharge their obligations under section 6 of the 1998 Act.

This is graphically shown in the judgment of Hickinbottom LJ (sitting with Singh LJ) in R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413:

“53.

…

xiv)

Mr Gill accepted that the First-tier Tribunal not only has the jurisdiction to
consider whether the proceedings before it are compliant with the procedural obligations of article 8, but the tribunal has an obligation to ensure compliance; and he accepted that the tribunal is the optimal forum for determining such an issue. I firmly agree. The tribunal has advantages over this court – and, indeed, the Administrative Court – in terms of constitution, experience and facilities; and, in these circumstances, the specialist tribunal will be able to look at the details required to ensure an effective appeal (see Kiarie & Byndloss at [104] per Lord Carnwath, and R (W2 and IA) v Secretary of State for the Home Department [2017] EWCA Civ 2146 at [86]-[88] per Beatson LJ in the parallel context of the Special Immigration Appeals Commission). If the tribunal in this case, at any time, considers that the Applicant’s appeal cannot be dealt with effectively out-of-country – or cannot be dealt with effectively out-of-country within a reasonable time – then it can and must say so. The guidance in AJ (Nigeria) suggests that, in these circumstances, a direction to that effect should be given by the tribunal, and the appeal should be adjourned, presumably to allow the Secretary of State to consider his position and for the Applicant to make such application to the High Court as he considers appropriate and necessary. In circumstances in which the tribunal is due to hold a case management conference in the Applicant’s appeal today, that all appears to me to be a powerful reason for not granting now the interim relief the Applicant seeks.”

It is against this important background that the applicant’s Article 8 procedural submissions fall to be considered. As Mr Kovats submits, the process needs to be considered as a whole. Although Mr Kovats rightly did not submit that there cannot be cases where it is apparent that section 94B certification should not be made or maintained by the respondent, irrespective of the position of the First-tier Tribunal, it is, as a matter of principle, wrong to rely on the hindsight afforded by the Upper Tribunal’s decision of 1 April 2019 that the First-tier Tribunal had erred in law, in order to demonstrate a legal failing on the part of the respondent, in maintaining section 94B certificate. The matter which caused the Upper Tribunal to set aside the First-tier Tribunal’s decision involved a refusal on the part of R’s mother to engage with those concerned to investigate, and report on, the applicant’s relationship with R. That was not something which was evident at the time of the applicant’s removal (when R was not even born) or for some time thereafter.

At paragraph 32 of the applicant’s skeleton argument, it is contended that it was “pleaded right from the outset in this claim” that there were procedural and legal obstacles preventing the applicant from obtaining evidence from an independent social worker as to the impact on the children. Paragraph 84(3) of the original grounds of judicial review, however, merely make the generic point – common in section 94B cases – that it would not be possible for a social worker “to be able to interview/assess the applicant face-to-face (or, in the case of the ISW, to undertake an observation/assessment of the applicant and his minor children interacting when physically in each other’s [presence] together)”. This is, however, significantly different from the reason why the Upper Tribunal found an error of law in the decision of the First-tier Tribunal. As explained at paragraph 59 of the Upper Tribunal’s decision of May 2019, it had become apparent that the mother of the children was refusing to allow a social worker to see them, in order to prepare a report using connection with the appeal. In order to remedy that, a specific issue order would be required; but the evidence showed that such an application made from Jamaica would have an unrealistic prospect of success in England and Wales. The point was, accordingly, that, so long as he remained in Jamaica, the applicant would be unlikely to be able to get a social work report based on the social worker meeting the children, let alone based the applicant being physically present with them.

There is no doubt that, for present purposes, the European Court of Human Rights views Contracting States as a single entity. The court does not distinguish between the State’s executive and its judiciary, when determining whether the State has breached an applicant’s ECHR rights. Thus, for example, in McCann v United Kingdom (2008) 47 EHRR 40, the court found a breach of Article 8 because neither the local authority, which had required the applicant’s wife to sign a notice to quit, nor the domestic courts had considered the applicant’s Article 8 defence to procession proceedings. On the facts of that case, the Strasbourg Court held that judicial review would not have been an effective remedy because “it did not provide any opportunity for an independent tribunal to examine whether the applicant’s loss of his home was proportionate under Article 8(2) to the legitimate aims pursued”.

By contrast, in the present case, the applicant has, at all material times, had access to a court or tribunal that was able to ensure compliance with Article 8 in its procedural (and, indeed, substantive) aspect. Whilst the applicant’s case was before the First-tier Tribunal, he could have asked the tribunal to rule that he could not effectively pursue his human rights appeal from outside the United Kingdom. The applicant did not need to wait until the time fixed for his substantive hearing, in order to put such a case. That case could have included a submission that, owing to any delay in holding the substantive hearing, his Article 8 case was being degraded, as a result of his lack of physical contact with his children.

In this regard, the fact that the respondent was responsible for bringing about that lack of physical contact is immaterial. It certainly does not entitle the applicant to fix the respondent with legal responsibility for any such harm arising from the delay.

If the applicant had applied to the First-tier Tribunal for an “AJ”- style direction and that tribunal had refused to make one, its refusal would have been susceptible to judicial review in the Upper Tribunal. The refusal would have been a “procedural, ancillary or preliminary decision” within the meaning of article 3(m) of the Appeals (Excluded Decisions) Order 2009.

This is the answer to the applicant’s submission that, at the time of Kiarie and Byndloss in the Court of Appeal and the Supreme Court, there was limited evidence regarding delay and waiting times for appeals and that the respondent had merely asserted to the Supreme Court that section 94B appeals could be fast-tracked or expedited.

I agree with the respondent that the applicant’s complaint appears, in truth, to be with the Upper Tribunal’s decision to stay the present application for judicial review, and subsequently to maintain that stay whilst the appeal proceedings were extant, rather than being against any conduct of the respondent. If, as the applicant now contends, the respondent could not lawfully maintain the certificate because doing so would be contrary to section 55 of the 2009 Act or would be otherwise unlawful for some reason that could not be satisfactorily addressed by the First-tier Tribunal and/or the Upper Tribunal in the appeal proceedings, then the applicant ought to have appealed against the Upper Tribunal’s decision to stay the judicial review. He did not do so.

In any event, I find no error on the part of the respondent. Emails between the respondent’s caseworker and the social services department of the relevant London Borough Council in August 2016 show that the respondent was considering the applicant’s position, vis-à-vis deportation, against the background of the concerns of children’s services in respect of J. The respondent’s decision to refuse the human rights claim of the applicant, against which he exercised his right of appeal, makes express reference to the applicant’s submission that his deportation order should be revoked, as there had been a change of circumstances in that children’s services had initiated a child protection proceedings regarding J. The respondent engaged with that submission in the context of Article 8 and, specifically, section 55 of the 2009 Act. The respondent was aware that children’s services had instigated a child protection plan for J but “as far as we are aware, [J] currently remains under the care of her mother who is her primary carer”. Later, at paragraph 74, consideration was given to whether removal pending the outcome of the applicant’s appeal (if made) would give rise to a real risk of seriously reversible harm to the applicant “or his children [or] to his relationship with them, or would otherwise breach either your client’s or their human rights”. At paragraph 75, express consideration was given to section 55. There then followed an explanation of why it was not accepted that it would be in J’s best interests for the applicant to be able to appeal from the United Kingdom. Even if that were accepted, however, the respondent considered it was outweighed by the strong public interest in deporting the applicant “as quickly and efficiently as possible given his serious drug offences”.

Since that last consideration regarding the public interest was merely an alternative conclusion, its correctness is immaterial. Discussing the nature and strength of the public interest in interim removal, Lord Wilson at paragraph 35 of Kiarie and Byndloss suggested that a “somewhat stronger aspect of the public interest is the risk that, if permitted to remain pending his appeal, the foreign criminal would, however prejudicially to its success, take that opportunity to re-offend. To that extent there is a public interest in his removal in advance of the appeal”.

A somewhat broader view of the public interest was taken by the Court of Appeal, at paragraph 37 of the judgment of Sir Timothy Lloyd in R (OO) (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 338. OO, however preceded the judgment of the Supreme Court in Kiarie.

The broader view of the public interest subsists, post- Kiarie. At paragraph 53(iv) of QR, Hickinbottom LJ held as follows:

“53.

…

iv)

However, as Ms Giovannetti submitted, we are here concerned with more than the lawfulness of the original decision. “Foreign criminals” who are deported under the automatic deportation provisions of Section 32 of the UK Borders Act 2007 (see paragraph 6 above) have, by definition, committed and been convicted of a serious criminal offence in the UK. At [35] of Kiarie & Byndloss, Lord Wilson suggested that the only public interest in removing a criminal before his appeal against the refusal of his article 8 claim is to remove the risk of reoffending – and Mr Gill submitted that in this case the risk of the Applicant reoffending was vanishingly small. The National Probation Service report dated 3 February 2017 assessed the Applicant as posing a “a medium risk of harm, however his risk of reoffending is low”. However, in my view, the risk of reoffending is not the only public interest in removal in these circumstances: for example, it also removes the risk of absconding. Furthermore, Lord Wilson was only talking in terms of whether an individual should be removed prior to his appeal. In this case, the Applicant was removed about 15 months ago; and, in assessing (amongst other things) the best interests of the children, we have to take into account (e.g.) the possibility of the trauma that might be caused if the Applicant were to be returned to the UK and shortly thereafter removed again.”

So far as concerns the effect of section 55 on the duty of enquiry, I agree with Mr Kovats that it is beyond argument that the respondent dealt satisfactorily with the submissions made at the point at which certification was made and the applicant was removed. Against that background, I do not find that, on the facts of this case, the respondent failed to make any necessary subsequent enquiries. That is so, even if one disregards the oversight and redress process afforded by the appellate system (which one cannot, for the reasons I have given).

At paragraph 39 of OO, Sir Timothy Lloyd said:

“39.

… It should not be necessary for the Secretary of State to make separate enquiries as to the position of any child. There may possibly be unusual circumstances in which, despite the potential deportee having, and taking, the opportunity to make such representations, the Secretary of State may not be satisfied that all has been said that might be about the interests of the child. In such a case there might be a duty to enquire further, though normally the enquiry would in the first place be of the potential deportee's representatives. But I reject the general proposition advanced on behalf of OO that the Secretary of State must in all cases make her own enquiries, before coming to a conclusion as to what would be in the best interests of any affected child.”

Ms Naik submitted that the present case is an example of an exception of the kind Sir Timothy Lloyd had in mind. I emphatically disagree. Quite apart from what I have said about the situation as it was immediately prior to the applicant’s removal, the documents that are the subject of the applicant’s application referred to at paragraph 16 above disclose nothing material during the period when the applicant was in Jamaica. As I have mentioned, in August 2016, the respondent was aware of the decision by children’s services to initiate child protection measures. The application materials show, however, that on 24 March 2017 a decision was made to exit the public law outline “as mother had made progress and the threshold is no longer met”. On 14 March 2017, it was noted that the children remained on a CP Plan but that the category had changed to emotional abuse. On 28 September 2017, the case was “stepped down to Child in Need”. On 26 February 2018, the case was “closed following CIN Plan”. On 29 June 2018, there was a report from J’s school “highlighting a decline in behaviour since children’s services closed the case”.

There is nothing in any of this to suggest that the respondent had a duty of further enquiry. On the contrary, if anyone had an obligation to keep matters under review, it was the applicant’s representatives. As the nature and timing of the application to adduce this evidence make plain, that did not happen.

I turn to the grounds concerning the alleged substantive breach of Article 8. Ms Naik submitted that the respondent’s grant of leave to remain to the applicant, which post-dated her earlier refusal to grant him leave to remain and his unsuccessful appeal against that refusal, demonstrates unequivocally that, at that time, the respondent recognised that the applicant’s removal from the United Kingdom would have breached his right to a private and family life. His interim removal must, therefore, amount to an interference with that life. That is true, insofar as it supports the contention (which the respondent does not refute) that the applicant had a protected Article 8 family life with his children. The submission does not, however, begin to suggest that the applicant’s deportation as a foreign criminal pursuant to the section 94B certificate was a disproportionate interference with his or his children’s Article 8 rights. At the time of the grant to the applicant of limited leave, his status as a foreign criminal and the resulting statutory public interest in his deportation had not arisen.

Ms Naik submitted that Kiarie and Byndloss has shown that at the time of removal, the applicant would not have had an effective remedy. Accordingly, his removal was an unlawful breach of his Article 8 rights. For the reasons I have already given, I reject that submission.

Ms Naik said that there was a “colossal interference” with the applicant’s Article 8 rights, and those of his family, which was quite plainly not proportionate or justified. In this regard, the applicant points to the Upper Tribunal’s conclusion on the re-making of the appeal that the proportionality case was “finely balanced”. It was, therefore, “overwhelmingly” in the best interests of the children for the applicant not to have been subject to interim deportation.

Mr Kovats pointed out that the definition of “human rights claim” in section 113 of the 2002 Act does not distinguish between the substantive and procedural components of Article 8 or, indeed, any other EHCR right. The dismissal of an appeal against the refusal of a human rights claim means that the person’s removal (whether by way of deportation or otherwise) would not be unlawful under section 6 of the 1998 Act. In the present case, the Upper Tribunal’s finding, on the re-making of the appeal, that the applicant’s removal would not be a breach of section 6 inevitably means there has been a judicial finding that Article 8, in its substantive form, would not be breached.

Mr Kovats submitted that the effect of the appeal in the Upper Tribunal is that the issue of Article 8 ECHR breach is res judicata. The outcome was the dismissal of the appeal, regardless of the fact that, on 1 April 2019, the Upper Tribunal had set aside the decision of the First-tier Tribunal on the basis that the evidence showed the applicant, if in Jamaica, would be unable to have an independent social worker evaluate the children, owing to their mother’s opposition to this being done; whereas if in the United Kingdom the social worker could access the children whilst they were having permitted contact with the applicant.

It is, in my view, highly significant that Parliament has decided, in the immigration context, to create an appellate regime by reference to whether the hypothetical removal of an individual would be contrary to section 6 of the 1998 Act. That appellate regime has produced the undisturbed judicial decision that the applicant’s deportation would not be in breach of section 6. In the present context, this constitutes a finding by the Upper Tribunal that, at the date it took its decision, the applicant’s deportation would not involve a substantive breach of Article 8 of the ECHR.

The process which led to that conclusion is, as I have found, one which has not been shown to have been in breach of Article 8, in its procedural form. Accordingly, where the issue has always been whether the applicant could be deported compatibly with Article 8, a lawful process, involving effective access to the tribunal, has resulted in the decision that Article 8 would not be violated.

Seen in this light, there cannot be any legitimate scope for the applicant to contend that, at some point in the process, he and/or his family has suffered a substantive breach of Article 8 rights. Indeed, the applicant does not identify any point in time at which position is said to have been otherwise.

The judicial review accordingly fails on Article 8 grounds.

THE CHALLENGE TO THE UPPER TRIBUNAL’S ORDER OF 9 MAY 2019

Section 25(1) and (2) of the 2007 Act provides as follows:

“25.

Supplementary powers of Upper Tribunal

(1)

In relation to the matters mentioned in subsection (2), the Upper Tribunal—

(a)

has, in England and Wales … the same powers, rights, privileges and authority as the High Court, and

(2)

The matters are—

(a)

the attendance and examination of witnesses,

(b)

the production and inspection of documents, and

(c)

all other matters incidental to the Upper Tribunal's functions.”

As I have mentioned, the order of 3 May 2019 directed the respondent to revoke the section 94B certificate and take all necessary steps to facilitate and fund the applicant’s return from Jamaica to the United Kingdom as soon as practicable for both parties. It was the respondent who requested the Upper Tribunal to make this order. The applicant did not oppose its making.

The applicant, nevertheless, now contends that the Upper Tribunal did not have power to make the order. The applicant contends that the order is equivalent to a “prerogative order”, which may be made in judicial review. The proceedings in question were, however, appellate in nature, taking place under section 12 of the 2007 Act.

In support of this challenge, the applicant points to the judgment of Mostyn J in SM v Court of Protection [2021] EWHC 2046 (Admin). In that case, the judge held that the Court of Protection was not subject to judicial review as it was the alter ego or avatar of the High Court. By contrast, the Upper Tribunal was not:

“The High Court powers granted … by s.25 are essentially procedural. They do not reincarnate the High Court under a different name” (paragraph 12).

Also relied on is Pierhead Drinks v HMRC [2019] UKUT 7 (TCC), where the Upper Tribunal held at paragraph 30 that:

“30.

… the other incidental matters in (c) are similarly limited to the UT’s functions in relation to proceedings that are properly before it. …”.

It was therefore held that, if the Upper Tribunal does not have jurisdiction, such as because a person who is not a party has no standing to bring an appeal, then section 25 does not apply. The section does not confer the High Court’s inherent jurisdiction on the Upper Tribunal generally or in all circumstances. Rather, section 25 is a more restricted provision that allows the Upper Tribunal to exercise the powers of the High Court in relation to matters over which the Upper Tribunal has jurisdiction under other provisions, such as section 11 of the 2007 Act.

The applicant submits that section 25 does not empower the Upper Tribunal to make a “bring-back” order. The correct approach in this regard is said to have been foreshadowed in [2018] UKUT 00165 (IAC), where the Upper Tribunal held that an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State’s decision and to compel her to facilitate the individual’s return. That approach is said to be at odds with the route taken in the present appeal.

The respondent points out that the courts have consistently held that section 25(2) should be given its full, natural meaning: BPP Holdings Ltd v Revenue and Customs Commissioners Practice Note [2016] EWCA Civ 121; William Hill Organisation Ltd v Crossrail Ltd [2016] UKUT 275 (LC); Gurusinghe et al v Drumlin Ltd [2021] UKUT 268 (LC) paragraph 32.

I am in no doubt that this challenge to the order of 3 May 2019 falls to be dismissed. The order was, plainly, procedural in nature. It was not equivalent to the substantive grant of relief in proceedings for judicial review. On the contrary, the order was made for the procedural purpose of enabling the appellant to bring an effective appeal before the Upper Tribunal, at the re-making hearing which took place on 9 January 2020.

Although the applicant was not ordered to be returned as a witness, so as to attend a hearing and be examined, as is specifically provided for in section 25(2)(a), the purpose of his return was closely analogous and so fell squarely within section 25(2)(c). This is so, even if one applies an euisdem generis approach to subsection (2)(c). The cases, however, show that such a narrow construction is, in any event, unwarranted. The only requirement is that there must be a free-standing function of the Upper Tribunal to which the matter in question is “incidental”. That is the point made by Mostyn J and by HHJ David Hodge QC at paragraph 32 of Gurusinghe.

In the present case, the Upper Tribunal was exercising a function under section 12 of the 2007 Act. It was engaged in the process of setting aside the decision of the First-tier Tribunal, on the basis of an error of law, and of proceeding under that section to re-make the decision.

There is no tension between the Upper Tribunal’s order of 3 May 2019 and what is said in [2018] UKUT 00165 (IAC). In that case, what is stated at headnote (2) of the reported decision makes it clear that judicial review would be the appropriate means of challenging a refusal by the Secretary of State to give effect to the decision of the First-tier Tribunal that it could not fairly determine the appeal whilst the appellant remains outside the United Kingdom. Section 25 does not arise in this situation because the First-tier Tribunal does not possess a section 25 power. This means that, were the Upper Tribunal to purport use section 25 in these circumstances, it would be acting unlawfully because there can be no free-standing “function”, as required by section 25(2).

By contrast, in the present case, proceedings were in progress under section 12 of the 2007 Act, when the Upper Tribunal made its order of 3 May 2019. As I have explained, that order was “incidental” to the Upper Tribunal’s section 12 function.

The judicial review therefore fails on this ground.

It remains for me to thank Ms Naik, Mr Bandegani and Mr Kovats for the clarity of their written and oral submissions.

DECISION

The application for judicial review is dismissed.