In the Upper Tribunal (Immigration and Asylum Chamber)
The present case is a claim for judicial review begun in the Upper Tribunal. It concerns the entitlement of the respondent Secretary of State for the Home Department to return the applicant asylum-seeker to Malta under the Dublin III Convention. That convention is now embodied in EU law: see Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), which I shall refer to as "the recast Regulation".
In the present case a proposed consent order, signed by the parties on 22 May 2015, was sealed by the Immigration and Asylum Chamber of the Upper Tribunal on 27 May 2015 ("the 27 May consent order"). The 27 May consent order purported to transfer the claim to the High Court. This course was taken because the applicant proposed to ask the High Court for permission to amend to claim a declaration of incompatibility, a remedy which in England and Wales only the High Court has power to grant. The validity of the 27 May consent order, however, was in doubt. A question arose as to whether rule 33A gave the Upper Tribunal power to make the 27 May consent order. At a hearing on 4 June 2015 I ruled that the 27 May consent order was not permitted by rule 33A, and was accordingly a nullity. I now give my considered reasons for that ruling.
At the hearing Mr Declan O'Callaghan, instructed by Duncan Lewis Solicitors ("Duncan Lewis"), appeared for the applicant. Mr Mathew Gullick, instructed by the Government Legal Department, appeared for the respondent. I am grateful for the assistance that I have received from the legal teams on both sides.