In immigration or asylum matters, a judicial review application can be filed in either the Upper Tribunal (Immigration and Asylum Chamber,) or the Administrative Court (England and Wales), which is a division of the High Court.

In this post we consider which claims should be issued where. If you would like specific advice on your case, please get in touch to arrange a consultation.

For more information about judicial review in general, see our resource collection.

Background

Prior to 2013, all judicial reviews claims – including those concerning immigration or asylum matters – needed to be issued at the High Court.

However, since 2013, and due to the volume of litigation in this area, responsibility for considering many of these applications was transferred to the Upper Tribunal (Immigration and Asylum Chamber), which is sometimes abbreviated to “UTIAC”.

The Upper Tribunal is able to make or grant a similar range of orders and reliefs, declarations and injunctions, as the Administrative Court, and which are enforceable as if granted by that court.

Jurisdiction of the UTIAC

Broadly, the Upper Tribunal will consider applications for judicial review decisions made under any of the Immigration Acts or otherwise relating to permission to enter or remain in the UK.

You can find the reported judicial review decisions of the Upper Tribunal here, and can be distinguished from regular appeals (which are also listed) by case reference numbers beginning “JR”.

Examples of recent reported decisions include a challenge to the legality of the Home Office fee waiver guidance, and a challenge by an individual to the lawfulness of his removal by the immigration authorities.

Residual jurisdiction of the Administrative Court

There remain some types of judicial review claim relating to immigration and asylum which should still be issued in the Administrative Court. This includes challenges to:

• the validity immigration legislation or rules
• the lawfulness of detention
• a decision which determines British citizenship;
• a decision made under the National Referral Mechanism for identifying victims of human trafficking or modern slavery
• a decision relating to asylum support or accommodation;
• a decision of the Upper Tribunal;
• a decision of the Special Immigration Appeals Commission;
• an application for a declaration of incompatibility under the s.4 of the Human Rights Act 1998
• a decision taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security.

Immigration judicial review decisions are listed with other administrative court decisions from other areas of law.

Examples of recent cases include a challenge to the refusal of two individuals attempting to register as British citizens under the British Nationality (Hong Kong) Act 1997, and a challenge by an individual to the lawfulness of the cancellation of his leave and his subsequent detention under immigration powers.

During the COVID-19 pandemic there have also been challenges relating to decisions and procedures of the UTIAC. In such cases, judicial review proceedings are brought in the Administrative Court.