This case concerned three conjoined claims for judicial review of decisions of the Special Immigration Appeals Commission (“SIAC”) and the Upper Tribunal, against which no statutory appeal was available. The only possible remedy, therefore, was judicial review. The Government contended that the statutory designation of both SIAC and the Upper Tribunal as “a superior court of record” excluded the High Court’s judicial review jurisdiction since superior courts of record are not amenable to judicial review.

The Divisional Court (Laws LJ and Owen J) rejected this argument. It agreed with the Claimants that the term “superior court of record” did not necessarily connote a body immune from judicial review. Moreover, in a passage certain be cited in future textbooks on constitutional law, Laws LJ held that in any event Parliament did not have power to exclude the High Court’s jurisdiction to review administrative action.

The Court went on to consider whether SIAC and/or the Upper Tribunal were so closely equivalent to the High Court as to amount to its alter ego, so that judicial review would not lie as a matter of common law. It concluded that SIAC did not amount to the alter ego of the High Court but that the Upper Tribunal did. Therefore the former was amenable to judicial review but the latter was not.

The Court granted permission to appeal its judgment in respect of the Upper Tribunal and it is anticipated that the case will be heard by the Court of Appeal in early 2010.

Richard Drabble QC and Charles Banner appeared for Mr Cart, instructed by David Burrows Solicitors and Advocates. Tim Buley (led by Michael Fordham QC) appeared for the Public Law Project, who were granted permission to intervene.

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