Case No. UKUT-00156-(IAC)

et al v Drumlin Ltd [2021] UKUT 268 (LC) paragraph 32.56.I am in no doubt that this challenge to the order of 3 May 2019 falls to be dismissed. The order was, plainly, procedural in nature. It was not equivalent to the substantive grant of relief in proceedings for judicial review. On the contrary, the order was made for the procedural purpose of enabling the appellant to bring an effective appeal before the Upper Tribunal, at the re-making hearing which took place on 9 January 2020.57.Although the applicant was not ordered to be returned as a witness, so as to attend a hearing and be examined, as is specifically provided for in section 25(2)(a), the purpose of his return was closely analogous and so fell squarely within section 25(2)(c). This is so, even if one applies an euisdem generis approach to subsection (2)(c). The cases, however, show that such a narrow construction is, in any event, unwarranted. The only requirement is that there must be a free-standing function of the Upper Tribunal to which the matter in question is “incidental”. That is the point made by Mostyn J and by HHJ David Hodge QC at paragraph 32 of Gurusinghe.58.In the present case, the Upper Tribunal was exercising a function under section 12 of the 2007 Act. It was engaged in the process of setting aside the decision of the First-tier Tribunal, on the basis of an error of law, and of proceeding under that section to re-make the decision. 59.There is no tension between the Upper Tribunal’s order of 3 May 2019 and what is said in [2018] UKUT 00165 (IAC). In that case, what is stated at headnote (2) of the reported decision makes it clear that judicial review would be the appropriate means of challenging a refusal by the Secretary of State to give effect to the decision of the First-tier Tribunal that it could not fairly determine the appeal whilst the appellant remains outside the United Kingdom. Section 25 does not arise in this situation because the First-tier Tribunal does not possess a section 25 power. This means that, were the Upper Tribunal to purport use section 25 in these circumstances, it would be acting unlawfully because there can be no free-standing “function”, as required by section 25(2). 60.By contrast, in the present case, proceedings were in progress under section 12 of the 2007 Act, when the Upper Tribunal made its order of 3 May 2019. As I have explained, that order was “incidental” to the Upper Tribunal’s section 12 function.61.The judicial review therefore fails on this ground.62.It remains for me to thank Ms Naik, Mr Bandegani and Mr Kovats for the clarity of their written and oral submissions.