When the Tribunal has the Power of Judicial Review

It is envisaged that the Tribunal will exercises the power of the High Court when Section 15 of the Tribunal, Courts and Enforcement Act 2007 comes fully into force. There has already been considerable resistance to this idea, and we wait to see when the time is chosen. In this article we consider some of the difficulties that this might give rise to.

Currently the Upper Tribunal only exercises under certain conditions its powers under Section 15 for issues involving the Criminal Compensation Tribunal, and reviews of decisions of the first-tier Tribunal made under the new Tribunal Procedure Rules where there is no right of appeal to the upper Tribunal against the decision.

'No man shall be judge in his own cause...'

The first step envisaged in the expansion of powers is that the Tribunal, rather than the High Court, will rule on whether an application, not considered by the Secretary of State to amount to a fresh claim, raises issues that require a right of appeal. Unfortunately the tribunal has no great record in this area either. Under the previous system an Appellant who was (following an initial appeal) denied a right of further appeal (or 'reconsideration' in the parlance of the time) could bring a 'statutory review' (a review on the papers by a High Court judge). Not infrequently this resulted in a ruling that there was an issue suitable for determination on appeal after all.

Currently the High Court operates a valuable supervisory jurisdiction over the First Tier Tribunal. Will the Upper Tribunal be as ready to strike down the Tribunal's own decisions? Those with experience of the readiness (or lack of it) of the Tribunal to grant permission to appeal to the Court of Appeal will doubt this. Other than in exceptionally rare cases the Tribunal is reluctant to grant permission, even in those decisions that are eventually overturned on appeal.

The recent case of Quila [2010] EWCA Civ 1482 (see our article ''Paving the Road to Hell'') provides a problem for the Courts in that until recently the Tribunal have been refusing entry clearance applications in line with Rule 277. What will happen to those cases that on the eve of the decision of the Court of Appeal, have been refused their final toss of the coin by the Upper Tribunal, and thus in theory have no remedy by way of either judicial review or further appeal is a difficult question. As the Tribunal takes on more of the powers of the High Court, it is likely that similar issues will...