EB, R (on the application of) v Secretary of State for the Home Department (Scotland; Transfer of claims) [2025] UKUT 412 (IAC)

[2025] UKUT 00412 (IAC)

R (on the application of EB) v Secretary of State for the Home Department (Scotland; Transfer of claims)

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Venue Edinburgh Upper Tribunal Hearing Centre

Melville Street

Venue Edinburgh

Hearing Hearing date: 15 August 2025

EH3 7HF

Promulgated on: 24 November 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

LORD RICHARDSON

THE KING

on the application of

Between

EBApplicant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr K Forrest

(instructed by McGlashan MacKay Solicitors) for applicant

Mr G Maciver

(instructed by the Government Legal Department) for respondent

Section 20 of the Tribunals, Courts and Enforcement Act 2007 makes provision for transfer of judicial review applications from the Court of Session to the Upper Tribunal. The discretionary transfer of applications in accordance with s20(1)(b) of the 2007 Act from the Court of Session to the Upper Tribunal must be considered on the merits of each case.

Transfer should be limited to those rare cases where the particular issues raised in the application will benefit from the expertise of the Upper Tribunal.

When transfer is contemplated, the question of permission to claim judicial review should, absent good reason, be considered by the Court of Session prior to transfer.

Where an application is transferred, the claim for judicial review will, in most cases, proceed in accordance with the procedural case management directions issued by the Upper Tribunal.

J U D G M E N T

Date 2025-11-24

[1]The applicant is a national of Morocco. The applicant raised a petition for judicial review of the respondent’s decision of 26 July 2024. That is a decision to refuse to treat further submissions made by the applicant on international protection and human rights grounds as a fresh claim under paragraph 353 of the Immigration Rules. The applicant seeks a reduction of the decision. The Advocate General for Scotland filed Answers to the petition claiming, among other things, that the petition had no real prospect of success and that permission to claim judicial review should be refused.

[2]Following a hearing attended by counsel for both parties, on 16 January 2025 the Lord Ordinary transferred the petition to the Upper Tribunal in accordance with section 20(1)(b) of the Tribunals, Courts and Enforcement Act 2007 (“the ‘2007 Act’”). The petition was transferred without any decision having been made in respect of permission.

[3]The present constitution of the Tribunal, including Lord Richardson, has been arranged to hear this petition so that, in addition to determining the application for permission to claim judicial review, the Tribunal may make some general observations on the proper approach to transfer of claims from the Court of Session to the Upper Tribunal.

[4]At the hearing before us on 15 August 2025, we granted permission to proceed. We were satisfied:(i) the applicant has a sufficient interest in the subject matter of the application; and

(ii) the applicant has a real prospect of success in establishing that the respondent’s decision of 26 July 2024 can be impugned on public law grounds. We have issued case management directions and need say no more about the merits of the underlying claim for judicial review.

The Issue

[5]In advance of the hearing before us, we made separate directions for the provision of written submissions from the parties addressing the principles to be applied in situations where the Court of Session may transfer an application for judicial review to the Upper Tribunal, and in particular: a) The factors that are relevant to a decision as to whether the Court of Session may transfer an application for judicial review from the Court of Session to the Upper Tribunal. b) The stage at which the application for permission to claim Judicial review should be considered (i.e. whether the application should be decided in the Court of Session prior to transfer or by the Upper Tribunal after transfer) having regard to all relevant factors, including delay. c) The case management implications of the transfer, including the application of Part 4 of The Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended).

[6]The focus of this judgment is solely upon those matters set out above. In order to put matters in context, it is helpful for us to outline, in a little more detail, the procedural history to this claim.

The Background

[7]The underlying claim that is the subject of this claim is a decision of the respondent dated 26 July 2024. A petition was lodged on 23 October 2024 and the Lord Ordinary granted first orders in standard terms appointing the petition to be intimated and served within 7 days. The respondent was required to lodge Answers and any relevant documents within 21 days of service. Thereafter: i) The Petition and associated documents were served on the respondent on 23 October 2024. ii) On 29 October 2024 the Lord Ordinary sisted the petition for two months until 30 December 2024 to allow time for a legal aid application made to the Scottish Legal Aid Board to be dealt with. iii) Legal Aid was made available to the applicant and a Legal Aid Certificate was issued on 27 November 2024. The sist was recalled on 5 December 2024. The Advocate General for Scotland filed Answers on behalf of the respondent. iv) On 16 January 2025, there was an oral permission hearing. The Lord Ordinary transferred the judicial review to the Upper Tribunal, pursuant to section 20(1)(b) of the 2007 Act. He did not make a decision as to whether to grant permission to proceed with the petition for judicial review. v) On 24 January 2025, a Legal Officer of the Upper Tribunal issued Case Management Directions, noting erroneously, that permission to claim judicial review had been granted. The Case Management Directions followed the standard directions normally adopted by the Upper Tribunal when permission to claim judicial review has been granted in England and Wales. vi) On 30 January 2025, the applicant’s representatives wrote to the Upper Tribunal seeking an extension of time to comply with the directions. They said that the question of ‘Legal Aid funding’ was unclear when a claim is transferred to the Upper Tribunal. The Legal Aid Board had sought further clarification as to the relevant regulatory framework for Legal Aid in Scotland. The applicant’s representatives advised that they were without funding and were unable to conduct any work until the funding arrangements had been resolved by the Scottish Legal Aid Board. vii) On 18 February 2025, having received an email from the Office of the Advocate General confirming that permission to claim judicial review had not, in fact, been granted, a Legal officer of the Upper Tribunal set aside the directions made on 24 January 2025 and directed that the claim be allocated to a Judge of the Upper Tribunal to decide the application for permission. viii) On 5 March 2025, an Upper Tribunal Lawyer emailed the parties inviting;(i) the Advocate General to provide the Upper Tribunal with a core bundle; and

(ii) the applicant’s representatives to provide an update as to any application before the Scottish Legal Aid Board. ix) On 21 March 2025, Upper Tribunal Judge Rintoul directed a sist of the matter for a period of six weeks pending confirmation from the applicant’s solicitors as to the position on Legal Aid and requesting an update within six weeks. Upper Tribunal Judge Rintoul also expressed his provisional view that the application for permission be listed for an oral hearing, rather than an initial decision being made on the papers, in order to provide an opportunity, if appropriate, to give guidance for similar cases in the future. x) On 27 May 2025, the Upper Tribunal was informed by the applicant’s representatives that the position regarding Legal Aid had been resolved and Civil Legal Aid has been granted. xi) On 15 July 2025, Upper Tribunal Judge Mandalia ordered that the application for permission to claim Judicial review be listed for an oral hearing before a panel of an Upper Tribunal Judge and a Judge of the Court of Session sitting in the Upper Tribunal in Edinburgh. The parties were directed to file a skeleton argument addressing the application for permission and the principles to be applied where the Court of Session may transfer an application for Judicial review from the Court of Session to the Upper Tribunal.

[8]As we have said, at the hearing before us on 15 August 2025, we granted permission to claim judicial review. During the hearing we canvassed with the parties the wider issues identified in directions issued to the parties on 15 July 2025. Although the parties had briefly addressed the issues in their respective skeleton arguments, it became clear during the course of the hearing, that the respondent in particular, should have a further opportunity to set out her general views regarding the transfer of claims to the Upper Tribunal. Whilst there is undoubtedly a legal framework that makes provision for transfer of cases, the respondent considered that there were also practical and procedural implications that ought to be considered.

[9]We subsequently received written submissions settled by Mr Maciver on behalf of the respondent. The applicant’s representatives were given an opportunity to consider and provide submissions if they wished but elected not to do so. We are grateful to both parties for their assistance.

The Legal Framework for Judicial Review in Scotland

[10]Although there are nuances between the legal framework that applies in England and Wales and the framework in Scotland, the broad framework is similar. Section 27A of the Court of Session Act 1988 (“the 1988 Act”) makes provision for an application to the supervisory jurisdiction of the Court to be made before the end of the period of 3 months beginning with the date on which the grounds giving rise to the application first arise, or such longer period as the Court considers equitable having regard to all the circumstances. The application must be brought by petition for judicial review presented in the Outer House of the Court of Session.

[11]Insofar as the claim concerns a decision made by the respondent such as the decision here, section 27B imposes a requirement for permission; s27B(1). The court may grant permission for the application to proceed only if it is satisfied that(a) the applicant can demonstrate a sufficient interest in the subject matter of the application, and

(b) the application has a real prospect of success (s27B(2)). The decision can be made without an oral hearing; (s27B(5)). However, in practice, oral hearings are the norm where the court is minded to refuse permission (see Dinsmore v Scottish Ministers

[2019] CSOH 18

at paragraph 19)

[12]The procedural rules that apply to petitions for judicial review are set out in the Act of Sederunt in Chapter 58 of the Rules of the Court of Session 1994SI 1994/1443 (“RCS”)

Transfer from the Court of Session to the Upper Tribunal

[13]Sections 15 to 21 of the 2007 Act create a statutory regime which enables the Upper Tribunal to exercise judicial review powers in appropriate cases. Sections 20 to 21 of the 2007 Act make provision for the transfer of judicial review applications from the Court of Session, the procedural steps where an application is transferred, and the jurisdiction of the Upper Tribunal: “20 Transfer of judicial review applications from the Court of Session(1) Where an application is made to the supervisory jurisdiction of the Court of Session, the Court– (a) must, if Conditions 1 and 2 are met, and (b) may, if Conditions 1 and 3 are met, but Condition 2 is not, by order transfer the application to the Upper Tribunal.

(2) Condition 1 is that the application does not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session.

(3) Condition 2 is that the application falls within a class specified for the purposes of this subsection by act of sederunt made with the consent of the Lord Chancellor.

(4) Condition 3 is that the subject matter of the application is not a devolved Scottish matter. … (8) In subsection (2), the reference to the exercise of the supervisory jurisdiction of the Court of Session includes a reference to the making of any order in connection with or in consequence of the exercise of that jurisdiction. 20A. — Procedural steps where application transferred (1) This section applies where the Court of Session transfers an application under section 20(1). (2) It is for the Upper Tribunal to determine— (a) whether the application has been made timeously, and (b) whether to grant permission for the application to proceed under section 27B of the Court of Session Act 1988 (“the 1988 Act”) (requirement for permission). (3) Accordingly— (a) the Upper Tribunal has the same powers in relation to the application as the Court of Session would have had in relation to it under sections 27A to 27C of the 1988 Act, (b) sections 27C and 27D of that Act apply in relation to a decision of the Upper Tribunal under section 27B(1) of that Act as they apply in relation to such a decision of the Court of Session. (4) The references in section 27C(3) and (4) of the 1988 Act (oral hearings where permission refused) to a different Lord Ordinary from the one who granted or refused permission are to be read as references to different members of the Tribunal from those of whom it was composed when it refused or granted permission. 21 Upper Tribunal's “judicial review” jurisdiction: Scotland (1) The Upper Tribunal has the function of deciding applications transferred to it from the Court of Session under section 20(1). (2) The powers of review of the Upper Tribunal in relation to such applications are the same as the powers of review of the Court of Session in an application to the supervisory jurisdiction of that Court. (3) In deciding an application by virtue of subsection (1), the Upper Tribunal must apply principles that the Court of Session would apply in deciding an application to the supervisory jurisdiction of that Court. (4) An order of the Upper Tribunal by virtue of subsection (1)– (a) has the same effect as the corresponding order granted by the Court of Session on an application to the supervisory jurisdiction of that Court, and (b) is enforceable as if it were an order so granted by that Court.

(5) Where an application is transferred to the Upper Tribunal by virtue of section 20(1), any steps taken or orders made by the Court of Session in relation to the application (other than the order to transfer the application under section 20(1)) are to be treated as taken or made by the tribunal.

(6) Tribunal Procedure Rules may make further provision for the purposes of supplementing subsection (5).” … (b) whether to grant permission for the application to proceed under section 27B of the Court of Session Act 1988 (“the 1988 Act”) (requirement for permission). (a) the Upper Tribunal has the same powers in relation to the application as the Court of Session would have had in relation to it under sections 27A to 27C of the 1988 Act, (b) sections 27C and 27D of that Act apply in relation to a decision of the Upper Tribunal under section 27B(1) of that Act as they apply in relation to such a decision of the Court of Session. (a) has the same effect as the corresponding order granted by the Court of Session on an application to the supervisory jurisdiction of that Court, and

The Rules of the Court of Session 1994

[14]Rule 58.5 RCS states: “58.5.— The petition: transfers to the Upper Tribunal(1) If the conditions in section 20(1)(a) of the 2007 Act are met, instead of determining permission under rule 58.7, the Lord Ordinary must make an order transferring the application to the Upper Tribunal.

(2) If paragraph (3) applies, the Lord Ordinary may make an order transferring the application to the Upper Tribunal— (a) instead of determining permission under rule 58.7; (b) after determining permission; or (c) at any subsequent hearing.

(3) This paragraph applies if— (a) the conditions in section 20(1)(b) of the 2007 Act are met, and (b) the Lord Ordinary is satisfied that it is in all the circumstances appropriate to transfer the application.

(4) The Lord Ordinary may make an order under paragraph (2) whether or not such an order was sought in the petition or was sought by motion by any party to the proceedings, but if no such order was sought, the parties must be heard before making an order.

(5) Where the Lord Ordinary makes an order transferring the application to the Upper Tribunal under paragraph (1) or (2), an order may be made in respect of any expenses incurred by the parties up to that point.” (b) the Lord Ordinary is satisfied that it is in all the circumstances appropriate to transfer the application.

The Tribunal Procedure (Upper Tribunal) Rules 2008

[15]Section 22 (1)(b) of the 2007 Act provides for the power to make procedural rules for the practice and procedure to be followed in the Upper Tribunal. Part 4 of The Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended) (“the Upper Tribunal Procedure Rules”) deal with Judicial review proceedings in the Upper Tribunal. Rule 27(1) operates so that where a Court transfers judicial review proceedings to the Upper Tribunal, the Tribunal must notify the parties of the transfer (27(1)(a)) and give directions for the future conduct of the proceedings (27(1)(b).

[16]Rule 27(3) addresses proceedings transferred from the Court of Session: “(3) In proceedings transferred from the Court of Session under section 20(1) of the 2007 Act, the directions given under paragraph (1)(b) must—(a) if the Court of Session did not make a first order specifying the required intimation, service and advertisement of the petition, state the Upper Tribunal's requirements in relation to those matters;

(b) state whether the Upper Tribunal will consider summary dismissal of the proceedings; and

(c) where necessary, modify or disapply provisions relating to permission in the following rules in this Part. (a) if the Court of Session did not make a first order specifying the required intimation, service and advertisement of the petition, state the Upper Tribunal's requirements in relation to those matters; (b) state whether the Upper Tribunal will consider summary dismissal of the proceedings; and (c) where necessary, modify or disapply provisions relating to permission in the following rules in this Part.

The Parties’ Positions

[17]In summary, the respondent submits that the transfer of claims for judicial review to the Upper Tribunal should be considered on a case-by-case basis. Albeit, the respondent considers that it is likely that there will be very few cases that are suitable for transfer. In the respondent’s view, a decision on permission should be taken by the court prior to deciding whether to transfer to the Upper Tribunal. In practice, the respondent submits a hearing will usually be required in any case where transfer is contemplated and it is efficient for the court to decide on permission at that time. Such an approach avoids unnecessary resources being allocated to claims that do not merit the grant of permission. Finally, the respondent submits case management factors also militate against transfer away from the streamlined and flexible procedure that has been developed in the Court of Session.

[18]On behalf of the applicant, in his skeleton argument Mr Forrest submits that, when considering whether it is in all the circumstances appropriate to transfer the application to the Upper Tribunal, the main relevant factor is likely to be the nature of the case. Where the specialist experience of the Upper Tribunal may be important, that may weigh in favour of transfer whereas transfer is less likely to be appropriate to determine a claim based on traditional public law grounds.

Discussion

[19]In the statutory framework, there is plainly a power to transfer applications to the Upper Tribunal.

[20]In the present case, it is clear that the conditions in section 20(1)(b) of the 2007 Act are met. The present case plainly satisfies Conditions 1 and 3, but not Condition 2 as set out in section 20(1) of the 2007 Act. Condition 1 applies because the petition here seeks a reduction of the respondent’s decision of 26 July 2024 to refuse to treat further submissions as a fresh claim under paragraph 353 of the Immigration rules. The petition does not seek anything other than the exercise of the supervisory jurisdiction of the Court of Session. Condition 2 is not met because the subject matter of the petition is not in a class specified in an Act of Sederunt for mandatory transfer. Condition 3 is met because the subject matter of the petition is not a devolved Scottish matter, since immigration, including asylum, is a reserved matter in the Scotland Act 1988.

[21]The transfer of the present case under section 20(1)(b) of the 2007 Act is therefore entirely discretionary, with no criteria specified other than that set out in rule 58.5(3) RCS that the Lord Ordinary is satisfied that it is, in all the circumstances, appropriate to transfer the application.

[22]As, since the coming into force of the 2007 Act, transfers have been extremely rare, it is unsurprising that little guidance can be found in previous cases. It is common ground between the parties that there have been very few cases where transfer has either been contemplated or has occurred. It is sufficient for us to refer to the most recent decision in JR v Advocate General for Scotland

[2024] CSOH 64

in which the court held that a petition by an unsuccessful asylum applicant for judicial review of the certification of his protection and human rights claims as clearly unfounded was appropriate for transfer to the Upper Tribunal following a consideration of the discretionary transfer provisions under the 2007 Act and the rules of the Court of Session 1994. The Lord Ordinary, Lady Poole, said: “10. … under rule 58.5(3) of the Rules of the Court of Session, the court has to consider all the circumstances and decide if it is satisfied it is appropriate to transfer the application. Two Scottish cases suggest some circumstances the courts might consider. These are the novelty and importance of the issues raised, the views of the parties, the expense of proceeding in the Court of Session, and expedition (L v Angus Council

[2011] CSOH 196

para [54], A, Petitioner

[2014] CSOH 27

paras [7]-[8]). Conversely, in A, Petitioner at para [10], the loss of the ability to reclaim to the Inner House without permission was found not to be a good reason to refuse a transfer (permission being required to appeal a decision of the Upper Tribunal to the Inner House of the Court of Session under section 13 of the 2007 Act and rule 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008, but not to reclaim an interlocutor of the Outer House of the Court of Session). Other relevant factors might be delay if a hearing date already fixed would be lost, or if there are difficult questions of procedure that might arise in the Upper Tribunal if cases are transferred, but not in the referring court (R (on the application of Hankinson) v Revenue and Customs Commissioners

[2009] EWHC 1774 (Admin)

), a case decided under transfer provisions applicable in England and Wales under section 19 of the 2007 Act.

[23]Lady Poole went on to address the application of the governing law and identified factors that may be relevant when considering whether the court is satisfied in all the circumstances that it is appropriate to transfer the applying rule 58.5(3)(b) RCS:

“13. In order to decide whether it is appropriate to exercise discretion to transfer a qualifying application for judicial review to the Upper Tribunal, regard must be had to the circumstances of the particular application before the court. The circumstances of the present case of most relevance were as follows. 1. The nature of the issue to be determined. The petition did not raise any point of general public importance, and was not the first in a number of similar cases which might benefit from being determined in the Court of Session. The test which must be applied in this particular type of judicial review, a challenge to a decision to certify a claim as clearly unfounded, is streamlined and well established (para [2] above). There is no particular benefit in the case continuing in the Court of Session in these circumstances. The Upper Tribunal has wide experience of appeals from the First-tier Tribunal in asylum cases, including those raising human rights or humanitarian protection issues. It is in a particularly favourable position to determine whether human rights and protection claims in a particular case would be bound to fail before the First-tier Tribunal. (The respondent informed the court that in England and Wales it was a procedural requirement that this particular type of judicial review must be commenced in the Upper Tribunal rather than the courts). 2. Cost, including to the public purse. The petitioner submitted that cost was a neutral factor for the petitioner. Because he was in receipt of legal aid, he was exempt from court fees under the Court of Session etc Fees Order 2022. The respondent was unable to provide submissions on a comparison of the overall level of expenses likely to be incurred, because of the limited number of applications for judicial review dealt with by the Upper Tribunal in Scotland. The court was not in a position to reach a concluded view about relative cost on the basis of the information before it. It can nevertheless be observed that fees for hearing first instance petitions in the Court of Session may be significant. Under the Court of Session etc Fees Order 2022, a fee of £225 is payable by each party for every 30 minutes or part thereof from 1 April 2024 for a substantive hearing, unless exempt. The fees are per party, and the respondent did not suggest it was exempt. Many petitions in the area of immigration are listed for a day's substantive hearing, which might result in significant court fees, if payable, being incurred. Even though the petitioner might personally be exempt from court fees, there is still a cost to the public purse of proceeding in the Court of Session. Publicly available information suggested that after permission is granted there is a fixed fee for the substantive hearing in the Upper Tribunal, currently £847, unless exempt (Apply for a judicial review in an immigration or asylum case -GOV.UK (www.gov.uk) ). It is possible there might be a cost saving to public funds if the petition is determined in the Upper Tribunal. 3. Delay. There is no substantive hearing date fixed in the Court of Session which will be lost if the case is transferred. Parties were unable to assist the court with relative timescales for determination in the Court of Session or Upper Tribunal in Scotland, because of the paucity of transferred applications for judicial review. Information was provided about timescales in England and Wales, suggesting 12-16 weeks for listing of a hearing of an application for judicial review after permission was granted in the Upper Tribunal, but it did not follow that the same position would exist in the Upper Tribunal operating in Scotland. As a matter of law, under section 21 of the 2007 Act, in any transferred case the Upper Tribunal must apply the principles that the Court of Session would apply in deciding an application to its supervisory jurisdiction. A well-established principle is that judicial review is designed to provide a speedy and effective remedy to challenge decisions of public bodies (Lauchlan andO'Neill v Scottish Ministers 2022 SC 125 para [18]). The Upper Tribunal has wide case management powers (rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008). If it chooses, in its directions as to the future conduct of the proceedings under rule 27(1)(b) of its procedure rules, it can adopt a procedure similar to that adopted in the Court of Session - of issuing an order fixing dates for a procedural and substantive hearing to ensure the case is dealt with speedily, and setting a timetable leading up to those dates for procedural steps such as the lodging of marked up documents and authorities, any affidavits, statements of issues, and notes of argument. There was nothing before the court suggesting the case would take any longer if transferred to the Upper Tribunal. 4. Procedural difficulties. There are rules in both the Court of Session and the Upper Tribunal, set out in para [6] and [7] of this opinion, which regulate procedure on a transfer. The respondent drew the court's attention to one possible procedural issue, which concerned an appeal lodged by the petitioner in the First-tier Tribunal as well as bringing the petition. The appeal had been taken on the basis that there had been no certification of the human rights claim. The decision on permission below includes refusal of permission on grounds predicated on there being no certification of the human rights claim. It is clear from the terms of the decision letter of 8 January 2024 that the human rights claim was certified, with the result that these grounds have no real prospects of success. In those circumstances, it may be that the First-tier Tribunal proceedings will be brought to an end. If not, it is possible there are advantages to both this case and the existing appeal being dealt with within the tribunal system. There a [sic] no procedural difficulties of such a nature to preclude transfer of the petition. 5. The views of the parties. Views of parties are a relevant factor. Given the terms of rule 58.5(4) of the Rules of the Court of Session, they are not decisive. On exploration, the views of the respondent that the case should not be transferred stemmed from it being unusual to transfer a petition to the Upper Tribunal in Scotland. That did not appear to the court to be a weighty reason, because the provisions in the 2007 Act and Rules of Court which govern transfers exist to be applied in appropriate cases. Both the Upper Tribunal and the Court of Session have relevant expertise in immigration and asylum matters, and are able to apply the well-established certification review principles. The petitioner also referred to the additional requirement of permission to appeal against an Upper Tribunal decision if either party wished to appeal further, but as noted above the court has already rejected this as an adequate reason to refuse a transfer (A, Petitioner [2014] CSOH 27).”

[24]In the event, Lady Poole was satisfied in the application before her that it was appropriate to transfer the petition to the Upper Tribunal. The most significant factor for the court was the nature of the issues for determination in the application for judicial review and her Ladyship considered that the Upper Tribunal might be in a particularly favourable position to determine applications for judicial review involving application of the certification review principles.

[25]In the present case, as we understand it, the Lord Ordinary took a contrasting approach. Although no written reasons were issued, we understand it from counsel that his Lordship took the view that, unless cases were transferred to the Upper Tribunal, it could not build up any expertise and this case did not raise any new point or principle of law.

[26]We respectfully agree with the approach taken in JR that the nature of the issues to be determined is a critical factor to be considered in assessing whether a transfer is appropriate. In this regard, we consider that it is important to recognise that the vast majority of petitions, particularly in the immigration and asylum field, concern principles of judicial review that are both well established and very familiar to the judges of the Court of Session. That experience would suggest that the Court of Session will be equally well, or possibly, better placed, in general, to deal with such petitions.

[27]Take for example, the tests to be applied in ‘paragraph 353’ claims as here, or challenges to a decision to certify a claim as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002. Where the further submissions do not amount to a fresh claim or the claim is certified as clearly unfounded, there is no statutory right of appeal to the First-tier Tribunal. The decision of the respondent is susceptible to challenge by judicial review only; Secretary of State for the Home Department v VM (Jamaica)

[2017] EWCA Civ 225

and ZL and VL v Secretary of State for the Home Department

[2003] EWCA Civ 25

. In these two categories of cases, the legal tests that are to be applied are now well established and are rarely in dispute. In a ‘paragraph 353’ claim, the issue is whether the respondent has asked the correct question and in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the respondent satisfied the requirements of anxious scrutiny; WM (DRC) v Secretary of State for the Home Department

[2006] EWCA Civ 1495

. In a challenge to ‘certification,’ the test is an objective one. If, on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded; ZL and VL v SSHD and R (FR (Albania) and Another) v Secretary of State for the Home Department

[2016] EWCA Civ 605

. In both of these categories of cases, the real dispute turns on the application of judicial review principles. Accordingly, in each case, we consider that the Court of Session is as well placed to consider the application as the Upper Tribunal.

[28]In our view, it is in those rare cases where a novel point is raised that falls within the jurisdiction of the Upper Tribunal that the benefit of transfer is likely to be greater. The Upper Tribunal, as a superior court of record undoubtedly has specialist expertise with an appellant jurisdiction to determine appeals arising from the First-tier Tribunal regarding protection claims, human rights claims and revocation of protection claims. In determining whether there is in fact a novel point, and if there is, deciding the point, the Upper Tribunal will be able to draw upon its expertise and specialised knowledge of its judges. What may be presented to the Court of Session as a novel point, may, in fact, be an issue that the Upper Tribunal is alive to and seized of.

[29]We also respectfully agree with the observations made by Lady Poole regarding other relevant factors to be considered including costs and public funding, delay, any procedural difficulties, and the views of the parties. We consider that the experience of the present case demonstrates that, in reality, those factors will tend to point against transfer.

[30]First, in respect of cost and delay, the funding arrangements for judicial review claims in England and Wales under Part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 are different to the funding arrangements for judicial review under the Legal Aid (Scotland) Act 1986 administered by the Scottish Legal Aid Board. At present, it appears that transferring between these two sets of arrangements causes significant difficulty and, as a consequence, delay. This can be seen from the background set out at paragraph [7] above.

[31]Second, in respect of procedural issues, the particular circumstances which arose in JR (at paragraph 13(4)) would seem unlikely to arise frequently. In any event, even when such circumstances do arise, as the facts of the present case demonstrate, effecting a transfer between the Court of Session and the Upper Tribunal give rise to practical difficulties which would seem to outweigh any slight potential procedural benefit.

[32]Finally, the views of the parties are plainly a relevant factor to be taken into account whilst not decisive. In this regard, it is true, as Lady Poole observes, that the mere fact that it is unusual to transfer a petition from the Court of Session to the Upper Tribunal would not, in itself, constitute a good reason for not making a transfer. Of course, the opposite is also true – merely because such transfers are rare does not constitute a good reason for effecting a transfer in any particular case. Furthermore, we consider that the fact that properly and responsibly advised parties appear to have only rarely, if ever, considered that a transfer would be of benefit is a point of significance. It respectfully seems to us that, in light of apparent unanimity among the parties as to the most efficient and effective means of resolving their dispute, the court may wish to seek to identify whether any particular positive benefits will accrue which will outweigh the inevitable procedural disruption and consequent delay arising from a transfer.

[33]In this regard, unlike Lady Poole, as noted above, we have had the benefit of the considered position of the respondent articulated in detailed written submissions. As noted above, the respondent’s view is that very few cases will be suitable for transfer and that case management factors will tend to militate against transfer from the streamlined and flexible procedure developed in the Court of Session. Given the extensive experience of the respondent in dealing with claims, we consider that significant weight ought to be attached to this statement of the respondent’s views. It is also notable that the applicant, despite being provided with an opportunity to do so, did not dispute the respondent’s approach.

[34]Although it is open to the Lord Ordinary to make an order for transfer to the Upper Tribunal whether or not such an order is sought by any party, if an order was not sought, it is notable that the parties must be heard before an order is made. Such a hearing is an opportunity for the parties to assist the Lord Ordinary in identifying, in particular, whether the circumstances of the application mean that it is one of the apparently rare applications in which transfer to the Upper Tribunal may present a positive procedural advantage. Whether in written documents or at a hearing, the importance of rigorous consideration is not to be underestimated. If there are issues or features of the application that would benefit from transfer to the expertise of a specialist Tribunal they ought to be identified. A position of neutrality may in fact be an indication to the Lord Ordinary that the party has been unable to identify any specific issues that arise in the application that in all the circumstances make it appropriate to transfer.

[35]If a transfer of the application to the Upper Tribunal is contemplated, we turn then to consider the stage at which the application for permission to claim Judicial review should be considered. In JR, Lady Poole said:

“15. The next question is the stage at which that transfer should be made. The petitioner submitted that the court should determine permission first if deciding to transfer the case. The respondent submitted that if there were to be a transfer, it should occur before permission was determined. One reading of section 20A(2) of the 2007 Act might be that it is for the Upper Tribunal to determine time bar and permission in transferred cases. However, under section 21(5) of the 2007 Act, steps or orders already taken or made by the Court of Session in a transferred case are to be treated as taken or made by the Upper Tribunal. Further, under rule 58.5(2) of the Rules of the Court of Session, a discretionary transfer may be made instead of determining permission, after determining permission, or at any subsequent hearing. Reading all of these provisions together, section 20A(2) of the 2007 Act requires to be interpreted so that the powers of the Upper Tribunal to determine time limits and permission arise in a discretionary transfer case where those matters have not already been determined by the Court of Session. That leaves intact the Court of Session's powers to determine time limits and permission before transferring, if it wishes to do so. The test for permission for judicial review in Scotland is the same whether determined by the Court of Session or by the Upper Tribunal (section 20A(2)(b) and (3) of the 2007 Act). Given that the court had written submissions before it and had heard argument on permission, considerations of delay and expense suggested the court should determine the issue of permission prior to transfer.”

[36]Where a discretionary transfer is being considered, the respondent submits the Court should consider the permission question prior to transfer. Consistently with the reasoning of Lady Poole, the respondent advances this position for essentially practical reasons – there is no need to convene an additional hearing to consider permission before the Upper Tribunal when the question of permission can be dealt with by the Lord Ordinary. Such an approach is plainly competent given the terms of rule 58.5(2). Where, conversely, mandatory transfer applies, it is not surprising that that should prohibit the court from determining permission (rule 58.5(1)). In cases where transfer is mandatory, instead of determining permission, the Lord Ordinary must make an order transferring the application to the Upper Tribunal. The whole substance of the claim is for the Tribunal, and the Tribunal only.

[37]We agree with the respondent that it is preferable for permission to be addressed before transfer. That approach has the obvious advantage of ensuring that limited resources and costs are not wasted on unmeritorious applications. It also has the advantage that undue delay, as has occurred here, is avoided by prolonging the decision on permission rather than addressing it summarily. Transfers are unusual and we accept, as Mr Maciver submits, that in practice, a hearing is likely to be required to determine whether the application is one that should be transferred to the Upper Tribunal. Accordingly, it is efficient for the court to decide on permission at the same hearing.

[38]We turn finally to the case management implications of any transfer to the Upper Tribunal. Rule 27(3) of the Upper Tribunal Procedure Rules addresses proceedings transferred from the Court of Session. Rule 27(3)(3)(a) addresses applications where transfer takes place before any steps are taken by the Court by a ‘first order’. Its application is limited to applications where mandatory transfer applies and it will be for the Upper Tribunal to give the appropriate directions. As rule 58.5(4) RCS expressly provides that if no order for transfer was sought by any party, the parties must be heard before making an order, it is obvious that the petition will have been served and advertised where discretionary transfer applies.

[39]Rule 27(3)(b) relates to directions as to whether the Upper Tribunal will consider summary disposal of the proceedings. It must be read alongside Rules 30(2), 30(3)(b) and 30(4) of the Upper Tribunal Procedure Rules. Nothing is therefore lost in circumstances where permission has been granted, but following transfer it appears there may be little merit to the claim.

[40]Finally, rule 27(3)(c) makes provision for the Upper Tribunal to, where necessary, modify or disapply provisions relating to permission.

[41]For reasons we have already set out, we consider that there are good practical reasons why the question of permission should be determined by the Court before transfer to the Upper Tribunal is contemplated. If that approach is followed, the additional procedure relating to the consideration of permission in the Upper Tribunal can be avoided (see Rules 28, 28A, 29, 30(1), 30(3)(a), 30(4A), 30(5), 31 and 33(a)).

[42]Once permission is granted and the application is transferred to the Upper Tribunal, it is for the Tribunal to determine for itself, within the rules, the procedure according to which the petition is to proceed before it. There can be no doubt that the Court of Session has developed a streamlined and straightforward procedure for dealing with applications for judicial review. A timetable is fixed by reference to an intermediate procedural hearing date, in order to ensure that cases proceed to a hearing in early course. However, in order to ensure consistency with the standard case management directions issued by the Upper Tribunal in claims where permission is granted, the Upper Tribunal will, as it did here, adopt its own directions, which can of course be modified or amended to suit the circumstances of the claim.

Conclusion

[43]In the present case, it is clear that the transfer of this claim without permission having been granted has resulted in significant delay in the determination of the claim.

[44]Having had the opportunity to give the issues which arise detailed consideration and in light of submissions we have received, in our view discretionary transfer of applications to the Upper Tribunal must be considered on the merits of each case and should in our judgment be limited to those cases where the particular issues raised in the application will benefit from the expertise of the Upper Tribunal. Experience would suggest that such cases will be rare. Factors such as delay and issues concerning funding result in inefficiency and are factors likely to weigh against transfer. When transfer is contemplated, there are good practical reasons why the question of permission should be considered by the Court prior to transfer. Where an application is transferred the claim for judicial review will in most cases proceed in accordance with the procedural case management directions issued by the Upper Tribunal along the lines of the directions issued by the Upper Tribunal in claims issued in England and Wales. V. Mandalia M. H. Richardson