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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mfumu, Re Petition for Judicial Review [2004] ScotCS 101 (27 April 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/101.html
Cite as: [2004] ScotCS 101

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Mfumu, Re Petition for Judicial Review [2004] ScotCS 101 (27 April 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord Hamilton

Lord Macfadyen

 

 

 

 

P9/03

OPINION OF THE COURT

delivered by LORD KIRKWOOD

in

PETITION

of

SALEMAH MFUMU

Petitioner and Reclaimer

for

Judicial Review of determinations of the Immigration Appeal Tribunal and an Immigration Adjudicator

and

ANSWERS

for

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

_______

 

Act: Govier; Anderson Strathern (for Castlemilk Law Centre, Glasgow) (for Petitioner and Reclaimer)

Alt: The Advocate General for Scotland, Carmichael; H. F. Macdiarmid (for Respondent)

27 April 2004

 [1]      In this petition Mrs. Salemah Mfumu (the "petitioner") seeks judicial review of two decisions relating to an application which she had made for asylum in the United Kingdom. She seeks reduction of (a) a determination by an immigration adjudicator dated 14 June 2002 refusing her appeal against a decision of the Secretary of State for the Home Department (the "respondent") refusing her application for asylum and (b) a subsequent determination of the Immigration Appeal Tribunal dated 8 July 2002 refusing her leave to appeal against the determination of the adjudicator.

[2]      The petitioner is a citizen of the Democratic Republic of Congo. By decision dated 2 December 2000 the respondent refused her application for asylum. The petitioner appealed against that decision and on 24 May 2002 the hearing in her appeal took place before an immigration adjudicator in Glasgow. The adjudicator made a determination dismissing the appeal. That determination was promulgated and notified to the petitioner on 14 June 2002. The petitioner then applied to the Immigration Appeal Tribunal for leave to appeal against the determination of the adjudicator. On 8 July 2002 the Immigration Appeal Tribunal refused that application. The determination of the Immigration Appeal Tribunal was made in London and it was notified to the petitioner on or about 25 July 2002.

[3]      The petition called before the Lord Ordinary in May 2003 when counsel for the respondent moved him to report the petition to the Inner House for a ruling in terms of Rule of Court 34.1. It was submitted that the issue was whether the Court of Session had jurisdiction to reduce both determinations. The question was whether, in the particular circumstances of this case, in which the petitioner seeks reduction of a determination by an adjudicator which was made in Scotland, and a determination of the Tribunal to refuse leave to appeal made in England, the Court of Session can exercise its supervisory jurisdiction over the determination of the Immigration Appeal Tribunal. The respondent's motion to remit the petition was acceded to by counsel for the petitioner. In the circumstances the Lord Ordinary agreed to report the petition to the Inner House and for that purpose he focused the issue for this court in the following terms:

"In light of the interlocutor and Opinion of Lord Philip in the case of Behrouz Tehrani v Secretary of State for the Home Department, 3 April 2003; and the decision of the Court of Appeal in England in R. (in the application of Majead) v Secretary of State for the Home Department [2003] EWCA Civ 615, 1 April 2003, does the Court of Session have jurisdiction to exercise its supervisory jurisdiction over the determination of the Immigration Appeal Tribunal, made in England and dated 25 July 2002, in the context of a petition for judicial review in which the petitioner also seeks reduction of the determination of an Adjudicator made in Glasgow and dated 14 June 2002?".

 [4]      This petition came before us at a hearing when we also considered petitions by Behrouz Tehrani and Igor Struk. In each of these cases an application for asylum in the United Kingdom had been refused by the respondent, an appeal to an immigration adjudicator had been refused and the Immigration Appeal Tribunal had refused leave to appeal. In the case of Tehrani the determinations by the adjudicator and by the Tribunal had been made in England, and the petitioner sought reduction of both determinations. In Struk the determination of the adjudicator had been made in Glasgow and that of the Immigration Appeal Tribunal in London, but in the Struk petition the petitioner was only seeking reduction of the determination of the Immigration Appeal Tribunal.

[5]      Before us, counsel for the petitioner submitted that the Court of Session could exercise its supervisory jurisdiction over the determination of the adjudicator, who had sat in Scotland, and over the determination of the Immigration Appeal Tribunal to refuse leave to appeal, notwithstanding that that determination had been made in London. We had already heard submissions from counsel for Tehrani in his petition, and counsel for Struk in his petition, and we had also heard the submissions in reply by the Advocate General. In these circumstances counsel for the petitioner in this case was content to adopt the submissions which had been made by counsel for Struk. We did not understand the Advocate General to contend that the Court of Session does not have jurisdiction in this case. In the circumstances we do not consider that it is necessary in this Opinion to seek to rehearse the arguments which were presented to us in the other petitions, and we simply refer to the Opinions in Tehrani and Struk.

[6]      For the reasons set out in those Opinions we are satisfied that the Court of Session is entitled to exercise its supervisory jurisdiction over the determination of the adjudicator made in Glasgow and dated 14 June 2002 and also over the determination of the Immigration Appeal Tribunal refusing leave to appeal which was made in London and dated 25 July 2002.

[7]      In his report to this court the Lord Ordinary stated that the issue had also been raised as to whether, in a case of this nature, when the court is of the view that there is merit in a petitioner's criticism of the determination of an adjudicator, the court should confine itself to reducing the determination of the Tribunal refusing leave to appeal against the determination of the adjudicator, and in this connection reference was made to the Opinion of Lord Macfadyen in Irzekevikius v. Secretary of State for the Home Department, unreported, 14 July 1999. That is, of course, not a matter which is before us in relation to the present remit, which is concerned only with the issue of jurisdiction.

[8]      In the circumstances we shall answer the question posed by the Lord Ordinary in his report in the affirmative, and remit the petition to him to proceed as accords.

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