Consultation on Judicial Review in the Upper Tribunal: Annex 3 Legislation and Allied Material

Consultation on Judicial Review in the Upper Tribunal: Annex 3 Legislation and allied material

Senior Courts Act 1981 sections 31 and 31A: * = as to be amended by section 53 of the Borders, Citizenship and Immigration Act 2009 – when it comes into force

31.— Application for judicial review. (1) An application to the High Court for one or more of the following forms of relief, namely— [(a) a mandatory, prohibiting or quashing order;]1 (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to— (a) the nature of the matters in respect of which relief may be granted by [mandatory, prohibiting or quashing orders]2 ; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. (3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates. [ (4) On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if– (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.]3 [ (5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition– (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) substitute its own decision for the decision in question. (5A) But the power conferred by subsection (5)(b) is exercisable only if– (a) the decision in question was made by a court or tribunal, (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached. (5B) Unless the High Court otherwise directs, a decision substituted by it under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal.]4

1 (6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.

1. Substituted by Civil Procedure (Modification of Supreme Court Act 1981) Order 2004/1033 art.4(a) (May 1, 2004) 2. Words substituted by Civil Procedure (Modification of Supreme Court Act 1981) Order 2004/1033 art.4(b) (May 1, 2004) 3. Substituted by Civil Procedure (Modification of Supreme Court Act 1981) Order 2004/1033 art.4(c) (May 1, 2004) 4. Section 31(5)-(5B) substituted for section 31(5) by Tribunals, Courts and Enforcement Act 2007 c. 15 Pt 7 s.141 (April 6, 2008)

31A Transfer of judicial review applications to Upper Tribunal [added by Tribunals, Courts and Enforcement Act 2007 c. 15 Pt 1 c.2 s.19(1) with effect from November 3, 2008] (1) This section applies where an application is made to the High Court– (a) for judicial review, or (b) for permission to apply for judicial review. (2) If Conditions 1, 2, 3 and 4 are met, the High Court must by order transfer the application to the Upper Tribunal. [*(2A) If Conditions 1, 2, 3 and 5 are met, but Condition 4 is not, the High Court must by order transfer the application to the Upper Tribunal.] (3) If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so. (4) Condition 1 is that the application does not seek anything other than– (a) relief under section 31(1)(a) and (b) (b) permission to apply for relief under section 31(1)(a) and (b); (c) an award under section 31(4); (d) interest; (e) costs. (5) Condition 2 is that the application does not call into question anything done by the Crown Court. (6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007. (7) Condition 4 is that the application does not call into question any decision made under– (a) the Immigration Acts, (b) the British Nationality Act 1981 (c. 61), (c) any instrument having effect under an enactment within paragraph (a) or (b), or (d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship. [*(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not

2 significantly different from material that has previously been considered (whether or not it calls into question any other decision).]

Borders, Citizenship and Immigration Act 2009 c. 11 Part 4 MISCELLANEOUS AND GENERAL Judicial review Not yet in force 53 Transfer of certain immigration judicial review applications (1) In section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales: transfer from the High Court to the Upper Tribunal)— (a) after subsection (2) insert— “(2A) If Conditions 1, 2, 3 and 5 are met, but Condition 4 is not, the High Court must by order transfer the application to the Upper Tribunal.” and (b) after subsection (7) insert— “(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision).”

Tribunals Courts and Enforcement Act 2007 section 11 and sections 15 to 19:

11 Right to appeal to Upper Tribunal (1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. (2) Any party to a case has a right of appeal, subject to subsection (8). (3) That right may be exercised only with permission (or, in Northern Ireland, leave). (4) Permission (or leave) may be given by– (a) the First-tier Tribunal, or (b) the Upper Tribunal, on an application by the party. (5) For the purposes of subsection (1), an “excluded decision” is– (a) any decision of the First-tier Tribunal on an appeal made in exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1)(a) of the Criminal Injuries Compensation Act 1995 (c. 53) (appeals against decisions on reviews), [(aa) any decision of the First-tier Tribunal on an appeal made in exercise of a right conferred by the Victims of Overseas Terrorism Compensation Scheme in compliance with section 52(3) of the Crime and Security Act 2010] [Added by Crime and Security Act 2010 c. 17 Sch.2 para.5 (April 8, 2010); section 52(3) of that Act is not yet in force.]

3 (b) any decision of the First-tier Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (c. 29) (appeals against national security certificate), (c) any decision of the First-tier Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (c. 36) (appeals against national security certificate), (d) a decision of the First-tier Tribunal under section 9– (i) to review, or not to review, an earlier decision of the tribunal, (ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, (iii) to set aside an earlier decision of the tribunal, or (iv) to refer, or not to refer, a matter to the Upper Tribunal, (e) a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun), or (f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor [In broad terms, the excluded decisions under this para are certain asylum support, tax, national insurance, immigration and asylum decisions: see the Appeals (Excluded Decisions) Order 2009/275 (set out below)] (6) A description may be specified under subsection (5)(f) only if– (a) in the case of a decision of that description, there is a right to appeal to a court, the Upper Tribunal or any other tribunal from the decision and that right is, or includes, something other than a right (however expressed) to appeal on any point of law arising from the decision, or (b) decisions of that description are made in carrying out a function transferred under section 30 and prior to the transfer of the function under section 30(1) there was no right to appeal from decisions of that description. (7) Where– (a) an order under subsection (5)(f) specifies a description of decisions, and (b) decisions of that description are made in carrying out a function transferred under section 30, the order must be framed so as to come into force no later than the time when the transfer under section 30 of the function takes effect (but power to revoke the order continues to be exercisable after that time, and power to amend the order continues to be exercisable after that time for the purpose of narrowing the description for the time being specified). (8) The Lord Chancellor may by order make provision for a person to be treated as being, or to be treated as not being, a party to a case for the purposes of subsection (2).

15 Upper Tribunal's “judicial review” jurisdiction (1) The Upper Tribunal has power, in cases arising under the law of England and Wales or under the law of Northern Ireland, to grant the following kinds of relief– (a) a mandatory order; (b) a prohibiting order; (c) a quashing order; (d) a declaration;

4 (e) an injunction. (2) The power under subsection (1) may be exercised by the Upper Tribunal if– (a) certain conditions are met (see section 18), or (b) the tribunal is authorised to proceed even though not all of those conditions are met (see section 19(3) and (4)). (3) Relief under subsection (1) granted by the Upper Tribunal– (a) has the same effect as the corresponding relief granted by the High Court on an application for judicial review, and (b) is enforceable as if it were relief granted by the High Court on an application for judicial review. (4) In deciding whether to grant relief under subsection (1)(a), (b) or (c), the Upper Tribunal must apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review. (5) In deciding whether to grant relief under subsection (1)(d) or (e), the Upper Tribunal must– (a) in cases arising under the law of England and Wales apply the principles that the High Court would apply in deciding whether to grant that relief under section 31(2) of the Supreme Court Act 1981 (c. 54) on an application for judicial review, and (b) in cases arising under the law of Northern Ireland apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review. (6) For the purposes of the application of subsection (3)(a) in relation to cases arising under the law of Northern Ireland– (a) a mandatory order under subsection (1)(a) shall be taken to correspond to an order of mandamus, (b) a prohibiting order under subsection (1)(b) shall be taken to correspond to an order of prohibition, and (c) a quashing order under subsection (1)(c) shall be taken to correspond to an order of certiorari.

16 Application for relief under section 15(1) (1) This section applies in relation to an application to the Upper Tribunal for relief under section 15(1). (2) The application may be made only if permission (or, in a case arising under the law of Northern Ireland, leave) to make it has been obtained from the tribunal. (3) The tribunal may not grant permission (or leave) to make the application unless it considers that the applicant has a sufficient interest in the matter to which the application relates. (4) Subsection (5) applies where the tribunal considers– (a) that there has been undue delay in making the application, and (b) that granting the relief sought on the application would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (5) The tribunal may–

5 (a) refuse to grant permission (or leave) for the making of the application; (b) refuse to grant any relief sought on the application. (6) The tribunal may award to the applicant damages, restitution or the recovery of a sum due if– (a) the application includes a claim for such an award arising from any matter to which the application relates, and (b) the tribunal is satisfied that such an award would have been made by the High Court if the claim had been made in an action begun in the High Court by the applicant at the time of making the application. (7) An award under subsection (6) may be enforced as if it were an award of the High Court. (8) Where– (a) the tribunal refuses to grant permission (or leave) to apply for relief under section 15(1), (b) the applicant appeals against that refusal, and (c) the Court of Appeal grants the permission (or leave), the Court of Appeal may go on to decide the application for relief under section 15(1). (9) Subsections (4) and (5) do not prevent Tribunal Procedure Rules from limiting the time within which applications may be made.

17 Quashing orders under section 15(1): supplementary provision (1) If the Upper Tribunal makes a quashing order under section 15(1)(c) in respect of a decision, it may in addition– (a) remit the matter concerned to the court, tribunal or authority that made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the Upper Tribunal, or (b) substitute its own decision for the decision in question. (2) The power conferred by subsection (1)(b) is exercisable only if– (a) the decision in question was made by a court or tribunal, (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision that the court or tribunal could have reached. (3) Unless the Upper Tribunal otherwise directs, a decision substituted by it under subsection (1)(b) has effect as if it were a decision of the relevant court or tribunal. 18 Limits of jurisdiction under section 15(1) (1) This section applies where an application made to the Upper Tribunal seeks (whether or not alone)– (a) relief under section 15(1), or (b) permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1). (2) If Conditions 1 to 4 are met, the tribunal has the function of deciding the application. (3) If the tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court.

6 (4) Condition 1 is that the application does not seek anything other than– (a) relief under section 15(1); (b) permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1); (c) an award under section 16(6); (d) interest; (e) costs. (5) Condition 2 is that the application does not call into question anything done by the Crown Court. (6) Condition 3 is that the application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (c. 4). (7) The power to give directions under subsection (6) includes– (a) power to vary or revoke directions made in exercise of the power, and (b) power to make different provision for different purposes. (8) Condition 4 is that the judge presiding at the hearing of the application is either– (a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or (b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals. (9) Where the application is transferred to the High Court under subsection (3)– (a) the application is to be treated for all purposes as if it– (i) had been made to the High Court, and (ii) sought things corresponding to those sought from the tribunal, and (b) any steps taken, permission (or leave) given or orders made by the tribunal in relation to the application are to be treated as taken, given or made by the High Court. (10) Rules of court may make provision for the purpose of supplementing subsection (9). (11) The provision that may be made by Tribunal Procedure Rules about amendment of an application for relief under section 15(1) includes, in particular, provision about amendments that would cause the application to become transferrable under subsection (3). (12) For the purposes of subsection (9)(a)(ii), in relation to an application transferred to the High Court in Northern Ireland– (a) an order of mandamus shall be taken to correspond to a mandatory order under section 15(1)(a), (b) an order of prohibition shall be taken to correspond to a prohibiting order under section 15(1)(b), and (c) an order of certiorari shall be taken to correspond to a quashing order under section 15(1)(c).

19 Transfer of judicial review applications from High Court (1) In the Supreme Court Act 1981 (c. 54), after section 31 insert [section 31A: see above]

7 (2) … (3) Where an application is transferred to the Upper Tribunal under 31A of the Supreme Court Act 1981 (c. 54) or section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court of judicial review applications)– (a) the application is to be treated for all purposes as if it– (i) had been made to the tribunal, and (ii) sought things corresponding to those sought from the High Court, (b) the tribunal has the function of deciding the application, even if it does not fall within a class specified under section 18(6), and (c) any steps taken, permission given, leave given or orders made by the High Court in relation to the application are to be treated as taken, given or made by the tribunal. (4) Where– (a) an application for permission is transferred to the Upper Tribunal under section 31A of the Supreme Court Act 1981 (c. 54) and the tribunal grants permission, or (b) an application for leave is transferred to the Upper Tribunal under section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) and the tribunal grants leave, the tribunal has the function of deciding any subsequent application brought under the permission or leave, even if the subsequent application does not fall within a class specified under section 18(6). (5) Tribunal Procedure Rules may make further provision for the purposes of supplementing subsections (3) and (4). (6) …

Appeals (Excluded Decisions) Order 2009/275 [as in force from 15 February 2010] [The version below incorporates amendments made by the Tribunals, Courts and Enforcement Act 2007 (Miscellaneous Provisions) Order 2010/41: by arts. 3 and 4 of that order with effect from 15 February 2010 art. 2 below was substituted and art. 3(m) below was added.] Made: 5 February 2009. Laid before Parliament: 13 February 2009. Coming into force: 1 April 2009 The Lord Chancellor makes the following Order in exercise of the power conferred by sections 11(5)(f) and 13(8)(f) of the Tribunals, Courts and Enforcement Act 2007.

Citation and commencement 1. This Order may be cited as the Appeals (Excluded Decisions) Order 2009 and comes into force on 1st April 2009.

Excluded decisions [2. For the purposes of section 11(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal are excluded decisions— (a) a decision under section 103 of the Immigration and Asylum Act 1999 (appeals); and (b) a decision under paragraphs 22, 23, 24, 29, 30, 31, 32 and 33 of Schedule 2 to the Immigration Act 1971.] 3. For the purposes of sections 11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal or the Upper Tribunal are excluded decisions—

8 (a) any decision under section 20(7), (8B) or (8G)(b) (power to call for documents of taxpayer and others), 20B(1B) or (6) (restrictions on powers under sections 20 and 20A) or 20BB(2)(a) (falsification etc. of documents) of the Taxes Management Act 1970; (b) any decision under section 35A(2) (variation of undertakings), 79A(2) (variation of undertakings) or 219(1A) (power to require information) of the Inheritance Tax Act 1984; (c) any decision under section 152(5) (notification of taxable amount of certain benefits) or 215(7) (advance clearance by Board of distributions and payments) of the Income and Corporation Taxes Act 1988; (d) any decision under section 138(4) of the Taxation of Chargeable Gains Act 1992 (procedure for clearance in advance); (e) any decision under section 187(5) or (6) (returns and information) of, or paragraph 3(2) or 6(2) of Schedule 21 (restrictions on powers under section 187) to, the Finance Act 1993; (f) any decision under paragraph 91(5) of Schedule 15 to the Finance Act 2000 (corporate venturing scheme: advance clearance); (g) any decision under paragraph 88(5) of Schedule 29 to the Finance Act 2002 (gains and losses from intangible fixed assets: transfer of business or trade); (h) any decision under paragraph 2, 4, 7, 9, 10, 11 or 24 of Schedule 13 to the Finance Act 2003 (stamp duty land tax: information powers); (i) any decision under section 306A (doubt as to notifiability), 308A (supplemental information), 313B (reasons for non-disclosure: supporting information) or 314A (order to disclose) of the Finance Act 2004; (j) any decision under section 697(4) of the Income Tax Act 2007 (opposed notifications: determinations by tribunal); (k) any decision under regulation 10(3) of the Venture Capital Trust (Winding up and Mergers) (Tax) Regulations 2004 (procedure for Board's approval); (l) any decision under regulation 5A (doubt as to notifiability), 7A (supplemental information), 12B (reasons for non-disclosure: supporting information) or 12C (order to disclose) of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2007. [(m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006.]

The First-tier Tribunal and Upper Tribunal (Chambers) Order 2010 SI 2010 No. 2655 (“the Chambers Order”).

Citation, commencement and revocations 1.—(1) This Order may be cited as the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010 and comes into force on 29th November 2010. (2) The Orders listed in the first column of the Schedule to this Order are revoked to the extent specified in the second column.

First-tier Tribunal Chambers 2. The First-tier Tribunal shall be organised into the following chambers— (a) the General Regulatory Chamber; (b) the Health, Education and Social Care Chamber; (c) the Immigration and Asylum Chamber; (d) the Social Entitlement Chamber; (e) the Tax Chamber; (f) the War Pensions and Armed Forces Compensation Chamber.

9 Functions of the General Regulatory Chamber 3. To the General Regulatory Chamber are allocated all functions related 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 by article 4 or to the Tax Chamber by article 7; (b) matters referred to the First-tier Tribunal under Schedule 1D to the Charities Act 1993 (references to Tribunal); (c) the determination of remuneration for carrying mail-bags in a ship or aircraft.

Functions of the Health, Education and Social Care Chamber 4. To the Health, Education and Social Care Chamber are allocated all functions related 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.

Functions of the Immigration and Asylum Chamber of the First-tier Tribunal 5. To the Immigration and Asylum Chamber of the First-tier Tribunal are allocated all functions related to immigration and asylum matters, with the exception of matters allocated to— (a) the Social Entitlement Chamber by article 6(a); (b) the General Regulatory Chamber by article 3(a).

Functions of the Social Entitlement Chamber 6. To the Social Entitlement Chamber are allocated all functions related to appeals— (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; (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.

Functions of the Tax Chamber 7. To the Tax Chamber are allocated all functions, except those functions allocated to the Social Entitlement Chamber by article 6 or to the Tax and Chancery Chamber of the Upper Tribunal by article 13, 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 Revenue Act 2009; (d) a function of the Compliance Officer for the Independent Parliamentary Standards Authority.

Functions of the War Pensions and Armed Forces Compensation Chamber 8. To the War Pensions and Armed Forces Compensation Chamber are allocated all functions related to appeals under the War Pensions (Administrative Provisions) Act 1919 and the Pensions Appeal Tribunals Act 1943.

Upper Tribunal Chambers 9. The Upper Tribunal shall be organised into the following chambers— (a) the Administrative Appeals Chamber; (b) the Immigration and Asylum Chamber of the Upper Tribunal; (c) the Lands Chamber; (d) the Tax and Chancery Chamber.

Functions of the Administrative Appeals Chamber 10. To the Administrative Appeals Chamber are allocated all functions related to— (a) an appeal— (i) against a decision made by the First-tier Tribunal, except an appeal allocated to the Tax and Chancery Chamber by article 13(a) or the Immigration and Asylum Chamber of the Upper Tribunal by article 11(a); (ii) under section 5 of the Pensions Appeal Tribunals Act 1943 (appeals against assessment of extent of disablement) against a decision of the Pensions Appeal Tribunal in Northern Ireland established under paragraph 1(3) of the Schedule to the Pensions Appeal Tribunals Act 1943 (constitution, jurisdiction and procedure of Pensions Appeal Tribunals); (iii) against a decision of the Pensions Appeal Tribunal in Scotland established under paragraph 1(2) of the Schedule to the Pensions Appeal Tribunals Act 1943; (iv) against a decision of the Mental Health Review Tribunal for Wales established under section 65 of the Mental Health Act 1983 (Mental Health Review Tribunals); (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 of a traffic commissioner; (b) an application, except an application allocated to another chamber by article 11(c), 12(c) or 13(g), for the Upper Tribunal— (i) to grant the relief mentioned in section 15(1) of the Tribunals, 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); (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,

11 except where the reference is allocated to another chamber by article 11(b) or 13(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 Tax and Chancery Chamber by article 13(1)(e).

Functions of the Immigration and Asylum Chamber of the Upper Tribunal 11. To the Immigration and Asylum Chamber of the Upper Tribunal are allocated 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 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— (i) relates to a decision of the First-tier Tribunal mentioned in paragraph (a); or (ii) 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.

Functions of the Lands Chamber 12. To the Lands Chamber are allocated— (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 leasehold valuation tribunals, residential property tribunals, the Valuation Tribunal for England or a valuation tribunal in Wales; (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); (d) any other functions transferred to the Upper Tribunal by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.

Functions of the Tax and Chancery Chamber 13.—(1) To the Tax and Chancery Chamber are allocated all functions related 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 Management 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;

12 (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 by article 6; (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(y)), with the exception of any function in relation to which an appeal would be allocated to the Social Entitlement Chamber by article 6; (iv) a function of the Charity Commission, or one of the bodies mentioned in subparagraph (b) or (c). (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 to the Charities Act 1993.

Resolution of doubt or dispute as to chamber 14. If there is any doubt or dispute as to the chamber in which a particular matter is to be dealt with, the Senior President of Tribunals may allocate that matter to the chamber which appears to the Senior President of Tribunals to be most appropriate.

Re-allocation of a case to another chamber 15. At any point in the proceedings, the Chamber President of the chamber to which a case or any issue in that case has been allocated by or under this Order may, with the consent of the corresponding Chamber President, allocate that case or that issue to another chamber within the same tribunal, by giving a direction to that effect.

Practice Direction (Upper Tribunal: Judicial review jurisdiction) [2008] WLR (D) 336

Lord Judge CJ: 29 October 2008

Two classes of application to the Upper Tribunal were specified for the purposes of section 18(6) of the Tribunals, Courts and Enforcement Act 2007.

The Upper Tribunal’s “judicial review” jurisdiction, provided for by section 15 of the Tribunals, Courts and Enforcement Act 2007, enabled the Upper Tribunal to grant the following relief: (a) a mandatory order; (b) a prohibiting order; (c) a quashing order; (d) a declaration; and (e) an injunction. The jurisdiction depended on the conditions set out in section 18 being met. By section 18(6), condition 3 was that the application fell within a class specified in a direction given in accordance with Pt 1 of Sch 2 to the Constitutional Reform Act 2005. LORD JUDGE CJ said that it was ordered as follows.

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.

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 under the 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 para (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 Pt 1 of Sch 2 to the Constitutional Reform Act 2005.