Tribunal system and judiciaryRe (1929) 45 TLR 186Forest Lake, The [1968] P 270Hopemount, The (1943) 75 LI L R 94Re (1929) 45 TLR 186Times 1 May
1.151Under TCEA it is possible, for the first time, to talk of a tribunal system. Before TCEA, there were numerous individual tribunals for particular jurisdictions. In some jurisdictions, there was a dedicated appeal structure of tribunals. And the Council on Tribunals had oversight of most tribunals. But there was no overall system.
1.152As a result of TCEA, that has changed. There is now a system, albeit not a comprehensive one. In effect, TCEA provides a constitutional settlement for tribunals and their judiciary. Responsibility is divided between the Lord Chief Justice and the Senior President of Tribunals.
1.153The tribunal system created by TCEA consists of three structures. Section 3 created two new tribunals: a First-tier Tribunal and an Upper Tribunal. Although they are separate, they may sit together. This allows, for example, an appeal to the First-tier Tribunal and judicial review proceedings in the Upper Tribunal to be heard by the same panel.
1As in Reed Employment plc v the Commissioners for Her Majesty’s Revenue and Customs [2010] UKFFT 596 (TC).Each tribunal is divided into chambers, each of which must have one or two Chamber Presidents (s7). The members and functions of some tribunals were immediately transferred into the Upper Tribunal or the First-tier Tribunal, as appropriate.
2Under TCEA s30 and Sch 6. Other tribunals were brought into the structure later. The rest remain outside the structure. TCEA also provided for the transfer of ministerial functions for particular tribunals to the Lord Chancellor and for rule making powers to be transferred to the Lord Chancellor (s35) or the Tribunal Procedure Committee (s36).
1.154Alongside the First-tier Tribunal and the Upper Tribunal, the structure for employment
3The Employment Tribunals Act 1996. For procedure in employment tribunals and the Employment Appeal Tribunal, see Jeremy McMullen, Rebecca Tuck and Betsan Criddle, Employment Tribunal Procedure – A User’s Guide to Tribunals and Appeals (3rd edn, LAG, 2004). remains as before.
1.155These three structures are united under a Senior President (s2(1)). Section 2(3) is a key provision, setting out the factors to which the Senior President must have regard in performing the office:
(3)A holder of the office of Senior President of Tribunals must, in carrying out the functions of that office, have regard to–
(a)the need for tribunals to be accessible,
(b)the need for proceedings before tribunals–
(i)to be fair, and(ii)to be handled quickly and efficiently,
(c)the need for members of tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters, and
(d)the need to develop innovative methods of resolving disputes that are of a type that may be brought before tribunals.
The First-tier Tribunal
1.156The First-tier Tribunal is organised into seven Chambers:
•the General Regulatory Chamber
•the Health, Education and Social Care Chamber;
•the Immigration and Asylum Chamber;
•the Property Chamber;
•the Social Entitlement Chamber;
•the Tax Chamber; and
•the War Pensions and Armed Forces Compensation Chamber.
The General Regulatory Chamber
1.157The functions of this Chamber are allocated by article 3 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to:
(a)proceedings in respect of the decisions and actions of regulatory bodies which are not allocated to the Health, Education and Social Care Chamber or to the Tax Chamber;
(b)matters referred to the First-tier Tribunal under Schedule 1D to the Charities Act 1993;
(c)the determination of remuneration for carrying mail-bags in a ship or aircraft.
The Health, Education and Social Care Chamber
1.158The functions of this Chamber are allocated by article 4 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to:
(a)an appeal against a decision related to children with special educational needs;
(b)a claim of disability discrimination in the education of a child;
(c)an application or an appeal against a decision or determination related to work with children or vulnerable adults;
(d)an appeal against a decision related to registration in respect of the provision of health or social care;
(e)an application in respect of, or an appeal against a decision related to, the provision of health care or health services;
(f)an appeal against a decision related to registration in respect of social workers and social care workers;
(g)an appeal against a decision related to the provision of childcare;
(h)an appeal against a decision related to an independent school or other independent educational institution;
(i)applications and references by and in respect of patients under the provisions of the Mental Health Act 1983 or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984.
The Immigration and Asylum Chamber
1.159The functions of this Chamber are allocated by article 5 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions related to immigration and asylum matters, except those allocated to the General Regulatory and Social Entitlement Chambers.
The Property Chamber
1.160The functions of this Chamber are allocated by article 5A of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to:
(a)a reference by the Chief Land Registrar and any other application, matter or appeal under the Land Registration Act 2002;
(b)proceedings under any of the enactments referred to in section 6A(2) of the Agriculture (Miscellaneous Provisions) Act 1954 or the Hill Farming Act 1946;
(c)housing etc, under the Housing Act 2004;
(d)leasehold property;
(e)residential property;
(f)rents;
(g)the right to buy;
(h)proceedings relating to mobile homes and caravan sites;
(i)proceedings for approval by the First-tier Tribunal of the exercise of a power of entry, made under paragraph 6B of Schedule 9 to the Local Government Finance Act 1988 or under section 25A of the Local Government Finance Act 1992.
The Social Entitlement Chamber
1.161The functions of this Chamber are allocated by article 6 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions in relation to appeals:
4By limiting the allocation to appeals, the Order fails to cover references of applications for a departure direction or a variation under the Child Support Act 1991.(a)in cases regarding support for asylum seekers, failed asylum seekers, persons designated under section 130 of the Criminal Justice and Immigration Act 2008, or the dependants of any such persons;
(b)in criminal injuries compensation cases;
(c)regarding entitlement to, payments of, or recovery or recoupment of payments of, social security benefits, child support, vaccine damage payments, health in pregnancy grant and tax credits, with the exception of–
(i)appeals under section 11 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (appeals against decisions of Her Majesty’s Revenue and Customs);
(ii)appeals in respect of employer penalties or employer information penalties (as defined in section 63(11) and (12) of the Tax Credits Act 2002);
(iii)appeals under regulation 28(3) of the Child Trust Funds Regulations 2004;
(d)regarding saving gateway accounts with the exception of appeals against requirements to account for an amount under regulations made under section 14 of the Saving Gateway Accounts Act 2009;
(e)regarding child trust funds with the exception of appeals against requirements to account for an amount under regulations made under section 22(4) of the Child Trust Funds Act 2004 in relation to section 13 of that Act;
(ea)appealable decisions within the meaning of section 56(3) of the Childcare Payments Act 2014;
(f)regarding payments in consequence of diffuse mesothelioma;
(g)regarding a certificate or waiver decision in relation to NHS charges;
(h)regarding entitlement to be credited with earnings or contributions;
(i)against a decision as to whether an accident was an industrial accident.
The Tax Chamber
1.162The functions of this Chamber are allocated by article 7 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions, except those functions allocated to the Social Entitlement Chamber or to the Tax and Chancery Chamber of the Upper Tribunal, related to an appeal, application, reference or other proceeding in respect of:
(a)a function of the Commissioners for Her Majesty’s Revenue and Customs or an officer of Revenue and Customs;
(b)the exercise by the Serious Organised Crime Agency of general Revenue functions or Revenue inheritance tax functions (as defined in section 323 of the Proceeds of Crime Act 2002);
(c)the exercise by the Director of Border Revenue of functions under section 7 of the Borders, Citizenship and Immigration Act 2009;
(d)a function of the Compliance Officer for the Independent Parliamentary Standards Authority.
The War Pensions and Armed Forces Compensation Chamber
1.163The functions of this Chamber are allocated by article 8 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to appeals under the War Pensions (Administrative Provisions) Act 1919 and the Pensions Appeal Tribunals Act 1943.
The Upper Tribunal
1.164TCEA s3(5) confers on the Upper Tribunal the status of a superior court of record.
1.165TCEA s25 gives the Upper Tribunal the same powers, rights, privileges and authority as the High Court in respect of the attendance and examination of witnesses, the production and inspection of documents, and all other matters incidental to the Upper Tribunal’s functions. The same powers are conferred on the Employment Appeal Tribunal (by section 29(2) of the Employment Tribunals Act 1996) and the Crown Court (by section 45 of the Senior Courts Act 1981). This does not include cases in which there is an express jurisdictional provision limiting the power to the High Court. So there is no power to give a vexatious litigant permission to commence or defend proceedings
5IB v Information Commissioner [2011] UKUT 370 (AAC); [2012] AACR 26. or to award pro bono costs under the Legal Services Act 2007 s194,
6Raftopoulou v Commissioners for Her Majesty’s Revenue and Customs [2015] UKUT 630 (TCC). although there is power to make various forms of protective costs orders.
7Drummond v Commissioners for Her Majesty’s Revenue and Customs [2016] UKUT 0221 (TCC).1.166In
Trinity Mirror plc,
8[2008] 2 All ER 1159. the Court of Appeal decided that a matter was incidental to the jurisdiction of the Crown Court ‘only when the powers to be exercised relate to the proper despatch of the business before it’.
9[2008] 2 All ER 1159 at [30]. This includes the power to order security for costs.
10Blada Ltd (in liquidation) v Commissioners for Her Majesty’s Revenue and Customs [2013] UKUT B7 (TCC) at [7].1.167The Upper Tribunal is organised into four Chambers:
11Article 9 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010.•the Administrative Appeals Chamber;
•the Immigration and Asylum Chamber of the Upper Tribunal;
•the Tax and Chancery Chamber;
•the Lands Chamber.
1.168The Lord Chancellor has power under TCEA ss32, 33 and 34 to provide for appeals to the Upper Tribunal against decisions of tribunals whose functions in relation to Wales, Scotland and Northern Ireland are otherwise outside the structure created by TCEA. This power is exercised by amendments to the relevant legislation in the Transfer of Tribunal Functions Order (for statutes) and the Consequential Provisions Order (for secondary legislation) that effect the transfer of jurisdictions into the TCEA structure.
1.169If there is a doubt or dispute as to which chamber has jurisdiction in a particular matter, the Senior President may allocate the matter to the most appropriate chamber.
12Article 14 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010.The Administrative Appeals Chamber
1.170The functions of this Chamber fall into three categories: appellate, judicial review and referral.
1.171The appellate function is allocated by article 10(a) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to an appeal:
(i)against a decision made by the First-tier Tribunal, except an appeal assigned to the Tax and Chancery Chamber or the Immigration and Asylum Chamber of the Upper Tribunal;
(ii)under section 5 of the Pensions Appeal Tribunals Act 1943 (assessment decision) against a decision of the Pensions Appeal Tribunal in Northern Ireland established under paragraph 1(2) of Schedule 1 to the Pensions Appeal Tribunals Act 1943;
13In Northern Ireland, entitlement appeals are heard by the Social Security Commissioners, while assessment appeals are heard by the Upper Tribunal. (iii)against a decision of the Pensions Appeal Tribunal in Scotland established under paragraph 1(2) of Schedule 1 to the Pensions Appeal Tribunals Act 1943;
14This covers both entitlement and assessment decisions. (iv)against a decision of the Mental Health Review Tribunal for Wales established under section 65 of the Mental Health Act 1983;
(v)against a decision of the Special Educational Needs Tribunal for Wales;
(vi)under section 4 of the Safeguarding Vulnerable Groups Act 2006 (appeals);
(vii)transferred to the Upper Tribunal from the First-tier Tribunal under Tribunal Procedure Rules, except an appeal allocated to the Tax and Chancery Chamber by article 13(1)(e);
(viii)against a decision in a road transport case.
15This expression is not defined. According to the explanatory note to the First-tier Tribunal and Upper Tribunal (Chambers) (Amendment) Order 2012, it is intended to cover appeals against decisions of the traffic commissioners and appeals against decisions made by the Department of the Environment in Northern Ireland. This is how the expression is defined by UTR r1(3). 1.172The judicial review function is allocated by article 10(b) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to an application, except one allocated to another chamber by article 11(c), (d) or (e), 12(c) or 13(g), for the Upper Tribunal:
(i)to grant the relief mentioned in section 15(1) of the Tribunal, Courts and Enforcement Act 2007 (Upper Tribunal’s ‘judicial review’ jurisdiction);
(ii)to exercise the powers of review under section 21(2) of that Act (Upper Tribunal’s ‘judicial review’ jurisdiction: Scotland).
1.173The referral jurisdiction is allocated by article 10(c), (d) and (e) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to:
(c)a matter referred to the Upper Tribunal by the First-tier Tribunal–
(i)under section 9(5)(b) of the Tribunals, Courts and Enforcement Act 2007 (review of decision of First-tier Tribunal), or
(ii)under Tribunal Procedure Rules relating to non-compliance with a requirement of the First-tier Tribunal,
except where the reference is allocated to another chamber by article 11(b) or 13(1)(f);
(d)a determination or decision under section 4 of the Forfeiture Act 1982;
(e)proceedings, or a preliminary issue, transferred under Tribunal Procedure Rules to the Upper Tribunal from the First-tier Tribunal, except those allocated to the Lands Chamber by article 12(cc) or to the Tax and Chancery Chamber by article 13(1)(e).
The Immigration and Asylum Chamber of the Upper Tribunal
1.174The jurisdiction of this Chamber is allocated by article 11 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions related to:
(a)an appeal against a decision of the First-tier Tribunal made in the Immigration and Asylum Chamber of the First-tier Tribunal;
(b)a matter referred to the Upper Tribunal under section 9(5)(b) of the Tribunals, Courts and Enforcement Act 2007 or under Tribunal Procedure Rules by the Immigration and Asylum Chamber of the First-tier Tribunal;
(c)an application for the Upper Tribunal to grant relief mentioned in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 (Upper Tribunal’s ‘judicial review’ jurisdiction), or to exercise the power of review under section 21(2) of that Act (Upper Tribunal’s ‘judicial review’ jurisdiction: Scotland), which is made by a person who claims to be a minor from outside the United Kingdom challenging a defendant’s assessment of that person’s age;
(d)an application for the Upper Tribunal to exercise the powers of review under section 21(2) of the Tribunals, Court and Enforcement Act (Upper Tribunal’s ‘judicial review’ jurisdiction: Scotland), which relates to a decision of the First-tier Tribunal mentioned in paragraph (a);
(e)an application for the Upper Tribunal to grant relief mentioned in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 (Upper Tribunal’s ‘judicial review’ jurisdiction), which is designated as an immigration matter–
(i)in a direction made in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 specifying a class of case for the purposes of section 18(6) of the Tribunals, Courts and Enforcement Act 2007; or
(ii)in an order of the High Court in England and Wales made under section 31A(3) of the Senior Courts Act 1981, transferring to the Upper Tribunal an application of a kind described in section 31A(1) of that Act.
The Lands Chamber
1.175The jurisdiction of this Chamber is allocated by article 12 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has:
(a)all functions related to–
(i)compensation and other remedies for measures taken which affect the ownership, value, enjoyment or use of land or water, or of rights over or property in land or water;
(ii)appeals from decisions of–
(aa)the First-tier Tribunal made in the Property Chamber other than appeals allocated to the Tax and Chancery Chamber by article 13(h);(ab)leasehold valuation tribunals in Wales, residential property tribunals in Wales, rent assessment committees in Wales, the Agricultural Land Tribunal in Wales or the Valuation Tribunal for Wales;(ac)the Valuation Tribunal for England;
(iii)the determination of questions of the value of land or an interest in land arising in tax proceedings;
(iv)proceedings in respect of restrictive covenants, blight notices or the obstruction of light;
(b)the Upper Tribunal’s function as arbitrator under section 1(5) of the Lands Tribunal Act 1949;
(c)an application for the Upper Tribunal to grant the relief mentioned in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 (Upper Tribunal’s ‘judicial review’ jurisdiction) which relates to a decision of a tribunal mentioned in sub-paragraph (a)(ii);
(cc)any case which may be transferred under Tribunal Procedure Rules to the Upper Tribunal from the Property Chamber of the First-tier Tribunal in relation to functions listed in article 5A(c) to (h);
(d)any other functions transferred to the Upper Tribunal by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.
The Tax and Chancery Chamber
1.176The functions of this Chamber fall into three categories: appellate, judicial review and referral.
1.177The jurisdiction of this Chamber is allocated by article 13 of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010. It has jurisdiction over all functions relating to:
(a)an appeal against a decision of the First-tier Tribunal made–
(i)in the Tax Chamber;
(ii)in the General Regulatory Chamber in a charities case;
(b)a reference or appeal in respect of–
(i)a decision of the Financial Services Authority;
(ii)a decision of the Bank of England;
(iii)a decision of a person related to the assessment of any compensation or consideration under the Banking (Special Provisions) Act 2008;
(iv)a determination or dispute within the meaning of regulation 14(5) or 15 of the Financial Services and Markets Act 2000 (Contribution to Costs of Special Resolution Regime) Regulations 2010;
(c)a reference in respect of a decision of the Pensions Regulator;
(d)an application under paragraph 50(1)(d) of Schedule 36 to the Finance Act 2008;
(e)proceedings, or a preliminary issue, transferred to the Upper Tribunal under Tribunal Procedure Rules–
(i)from the Tax Chamber of the First-tier Tribunal;
(ii)from the General Regulatory Chamber of the First-tier Tribunal in a charities case;
(f)a matter referred to the Upper Tribunal under section 9(5)(b) of the Tribunals, Courts and Enforcement Act 2007 or under Tribunal Procedure Rules relating to non-compliance with a requirement of the First-tier Tribunal–
(i)by the Tax Chamber of the First-tier Tribunal;
(ii)by the General Regulatory Chamber of the First-tier Tribunal in a charities case;
(g)an application for the Upper Tribunal to grant the relief mentioned in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 (Upper Tribunal’s ‘judicial review’ jurisdiction), or to exercise the powers of review under section 21(2) of that Act (Upper Tribunal’s ‘judicial review’ jurisdiction: Scotland), which relates to–
(i)a decision of the First-tier Tribunal mentioned in paragraph (1)(a)(i) or (ii);
(ii)a function of the Commissioners for Her Majesty’s Revenue and Customs or an officer of Revenue and Customs, with the exception of any function in respect of which an appeal would be allocated to the Social Entitlement Chamber;
(iii)the exercise by the Serious Organised Crime Agency of general Revenue functions or Revenue inheritance tax functions (as defined in section 323 of the Proceeds of Crime Act 2002), with the exception of any function in relation to which an appeal would be allocated to the Social Entitlement Chamber;
(iv)a function of the Charity Commission, or one of the bodies mentioned in sub-paragraph (b) or (c);
(h)an appeal against a decision of the First-tier Tribunal made in the Property Chamber in a case mentioned in article 5A(a).
1.178Article 13(2) provides:
(2)In this article ‘a charities case’ means an appeal or application in respect of a decision, order or direction of the Charity Commission, or a reference under Schedule 1D of the Charities Act 1993.
Judicial review in the Upper Tribunal
1.179For England and Wales, the Lord Chief Justice has issued practice directions.
Practice Direction (Upper Tribunal: Judicial Review Jurisdiction)16[2009] 1 WLR 327. The words in brackets in para 2b were added by the 2013 Direction and do not appear in the report. orders:
1.The following direction takes effect in relation to an application made to the High Court or Upper Tribunal on or after 3 November 2008 that seeks relief of a kind mentioned in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’).
2.The Lord Chief Justice hereby directs that the following classes of case are specified for the purposes of section 18(6) of the 2007 Act-–
a.Any decision of the First-tier Tribunal on an appeal made in the exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on review); and
b.Any decision of the First-tier Tribunal made (other than its Immigration and Asylum Chamber) under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11(5) of the 2007 Act.
3.This Direction does not have effect where an application seeks (whether or not alone) a declaration of incompatibility under section 4 of the Human Rights Act 1998.
4.This Direction is made by the Lord Chief Justice with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by section 18(6) of the 2007 Act and in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
Paragraph 2a applies to the Administrative Appeals Chamber of the Upper Tribunal, to which the criminal injuries compensation jurisdiction is allocated. Paragraph 2b applies to all chambers of the Upper Tribunal except the Immigration and Asylum Chamber.
1.180The direction dated 21 August 2013 deals exclusively and exhaustively with the jurisdiction of the Immigration and Asylum Chamber of the Upper Tribunal:
Consolidated Direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 and TCEA s18–Jurisdiction of the Upper Tribunal under s18 of the Tribunals, Courts and Enforcement Act 2007 and Mandatory Transfer of Judicial Review Applications to the Upper Tribunal under s31A(2) of the Senior Courts Act 1981. It orders:
1.Subject to paragraphs 2 and 3 below, the Lord Chief Justice hereby specifies the following classes of case for the purposes of section 18(6) of the Tribunals, Courts and Enforcement Act 2007:
any application for permission to apply for judicial review and any application for judicial review (including any application for ancillary relief and costs in such applications) that calls into question:
i.a decision made under the Immigration Acts (as defined in Schedule 1 to the Interpretation Act 1978) or any instrument having effect (whether wholly or partly) under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the United Kingdom outside immigration rules; or
ii.a decision of the Immigration and Asylum Chamber of the First-tier Tribunal, from which no appeal lies to the Upper Tribunal.
2.Paragraph 1 above applies, with effect from 1 November 2013, in relation to:
i.any cases in which an application for permission to apply for judicial review was issued in the Administrative Court on or after 9 September 2013;ii. any case in which there was a request, which has yet to be determined, for reconsideration at a hearing under CPR 54.12 of an application for permission that was refused without a hearing on or after 9 September 2013; andiii.any application issued in the Upper Tribunal on or after 1 November 2013.
3.Paragraph 1 above does not apply to any application which comprises or includes:
i.a challenge to the validity of primary or subordinate legislation (or of immigration rules);
ii.a challenge to the lawfulness of detention (but an application does not do so by reason only of the fact that it challenges a decision in relation to bail);
iii.a challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the United Kingdom Border Agency, or any authorisation of such Sponsors;
iv.a challenge to a decision under the British Nationality Act 1981 or any other provision of the law for the time being in force which determines British citizenship, the status of a British national (Overseas), British Overseas citizenship or the status of a British subject;
v.a challenge to a decision made under or by virtue of section 4 (accommodation centres) or Part VI (other support and assistance) of the Immigration and Asylum Act 1999;
vi.a challenge to a decision made under or by virtue of Part II (accommodation centres) or Part III (other support and assistance) of the Nationality, Immigration and Asylum Act 2002;
vii. a challenge to a decision of the Upper Tribunal;
viii. a challenge to a decision of the Special Immigration Appeals Commission; or
ix.an application for a declaration of incompatibility under section 4 of the Human Rights Act 1998.
4.In paragraphs 1 and 3 above, references to a decision include references to any omission or failure to make a decision.
5.Any application to which paragraph 1 applies, and any proceedings relating thereto, are hereby designated as an immigration matter.
17As such they are within the Immigration and Asylum Chamber’s judicial review jurisdiction under the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010 art 11(e). 6.(1) The direction of 17 October 2011 is revoked.
18This refers to Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) (No 2) reported at [2012] 1 WLR 16, although the report gives its date as 7 October 2011. (2)The direction of 29 October 2008 is amended as follows.
19This refers to Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) reported at [2009] 1 WLR 327, although the report gives its date as 30 October 2008. (3)In paragraph 2b, after ‘First-tier Tribunal’ insert ‘(other than its Immigration and Asylum Chamber)’.
(4)This paragraph takes effect on 1 November 2013.
7.This Direction is made by the Lord Chief Justice with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by section 18(6) and (7) of the 2007 Act and in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
This direction was amended by a direction of the same title dated 24 October 2013. It orders:
1.Without prejudice to paragraph 2 of the direction of 21 August 2013, paragraph 1 of that direction also applies to any application of the kind there mentioned, issued before 1 November 2013, which, immediately before that date, fell within the class specified in paragraph 1 of the direction of 17 October 2011.
2.This Direction is made by the Lord Chief Justice with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by section 18(6) and (7) of the 2007 Act and in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
1.181In addition, cases may be transferred from the Administrative Court to the Upper Tribunal on an individual basis.
1.182The Upper Tribunal only has power to transfer a case to the High Court pursuant to TCEA s18(3) if proceedings were commenced in the Upper Tribunal or pursuant to UTR r33A if proceedings were transferred to the Upper Tribunal by the High Court.
20For an analysis of the circumstances in which this may occur, see R (B) v Secretary of State for the Home Department [2016] UKUT 00182 (IAC).Judges
1.183Judges become judges of the Upper Tribunal or First-tier Tribunal in three ways: (i) by transfer-in; (ii) by appointment; and (iii) by virtue of holding another office. There is equivalent provision for other members. Transfer-in is appropriate when the function of a tribunal is transferred into the Upper Tribunal or First-tier Tribunal. Appointments are governed by Schedule 3 to TCEA; selection is made through the Judicial Appointments Commission. Other officeholders are specified in TCEA ss4–6.
1.184A judge is authorised to decide matters within a jurisdiction by assignment, ticketing and judicial assistance. Within the Upper Tribunal and First-tier Tribunal, judges are assigned to a chamber and ticketed for jurisdictions within that chamber. They may provide judicial assistance to other tribunals.
21For example: Employment Tribunals Act 1996 s5D, inserted by TCEA Sch 8 para 8.1.185Decisions are occasionally made by judges who are not authorised to do so. Their decisions are valid, provided that they believed that they held an appropriate appointment to hear the case and were sitting in the appropriate tribunal in order to do so.
22Baldock v Webster [2006] QB 315.1.186Judges may be salaried or fee-paid. Salaried judges are not allowed to engage in practice. They may work full-time or part-time. The latter are paid the appropriate proportion of the full-time salary. Fee-paid judges are allowed to engage in practice and are paid a fee for each session.
Death of judge
1.187A judge may die before the hearing is complete or while the decision is still in discussion.
1.188If a judge dies before the hearing is complete, another judge may take over and read the evidence already given.
23Evans-Lombe J in R (Hitch) v Income Tax Special Commissioners [2005] 1 WLR 1651. This is so even if the judge was sitting with assessors or colleagues,
24Re British Reinforced Concrete Engineering Co Ltd’s Application (1929) 45 TLR 186 at 187. or if the facts are in dispute.
25Karminski J in The Forest Lake [1968] P 270 at 273. In one case, the new judge even read the previous judge’s notes on the demeanour of witnesses, albeit with the agreement of the parties.
26The Hopemount (1943) 75 Ll LR 94 at 96.1.189In
Coleshill v Lord Mayor, Aldermen and Citizens of the City of Manchester, Scrutton LJ doubted whether a different judge could take over a case that was part heard.
27[1928] 1 KB 776 at 786. That case involved a jury. His comments have been distinguished on that basis
28MacKinnon J in In re British Reinforced Concrete Engineering Co Ltd’s Application (1929) 45 TLR 186 at 187. and never applied to cases that do not involve a jury.
1.190If one member of a panel dies while the decision is still in discussion, the position depends on whether the members were agreed on the outcome. If they were, the decision stands as that of the majority,
29R v Greater Manchester Valuation Panel ex p Shell Chemicals UK Ltd [1982] QB 255. provided that a majority decision is possible. If they were not, the decision does not stand, at least where the dissenting and deceased member was the presiding judge.
30R v Department of Health ex p Bhaugeerutty (1998) Times 1 May.1.191The death of a judge after the decision has been announced does not affect the decision, at least in criminal cases.
31R v Coates [2004] 1 WLR 3043.Titles
1.192The Senior President has specified the title by which judges and other members of the First-tier Tribunal and the Upper Tribunal are known.
1.193All judges of the Upper Tribunal are known as Upper Tribunal Judges.
1.194Salaried judges of the First-tier Tribunal are known as Tribunal Judges. If they have district or regional responsibilities, they are known as District Tribunal Judges or Regional Tribunal Judges. The lead judge in a jurisdiction is known as Principal Judge followed by the jurisdiction in brackets. Fee-paid judges of the First-tier Tribunal are known as Deputy Tribunal Judges.
1.195The Senior President, Chamber Presidents and Deputy Chamber Presidents use their title followed by SP, CP or DCP.
1.196When a judge is referred to in a decision, the first reference uses the full title. Thereafter, only Judge is used.
1.197Non-legal members use their usual style.
The future
1.198The basic structure of the tribunals is now complete. A number of smaller jurisdictions have yet to be brought within the structure. It is likely that the Employment Appeal Tribunal and the employment tribunal will remain outside the Upper Tribunal and First-tier Tribunal structure for the time being.