affiliated to the International Association of Constitutional Law
There is much current debate over judicial review, prompted in large part by successive government consultation papers. This note provides an overview of recent developments concerning immigration judicial reviews, which have, for many years, provided the bulk of all judicial review claims. The growth in the volume of all judicial reviews over recent years can be attributed to the increase in the number of immigration judicial reviews. As Rick Rawlings put it in his essay, “Modelling Judicial Review”, it has sometimes been difficult to avoid the impression that the Administrative Court is an immigration court with knobs on.
According to the Ministry of Justice’s judicial statistics, in 2011 there were 11,200 applications for permission to apply for judicial review received in the Administrative Court, of which 8,649 concerned asylum and immigration matters – some 77 per cent. The volume of immigration and asylum judicial review claims arises for numerous reasons: the significance of the decisions to those affected, not least in human rights terms; concerns over the quality of decision-making by the immigration authorities; and the opportunities for delay to be gained from tactical litigation, such as last minute applications to challenge removal from the UK.
Often the figures are used to discredit the merits of such challenges – especially by the relevant defendant, the Home Office. Negative epithets such as “lacking substance”, “without merit”, and “vexatious” have repeatedly been employed by the Home Office to characterise immigration judicial reviews. Of the 8,649 immigration judicial reviews lodged in 2011, 607 were granted permission to proceed while 4,604 were refused permission and in only 54 substantive claims did the court rule that the claimant succeeded. Therefore – so the argument goes – only a tiny handful of immigration judicial review challenges ultimately succeed; most are bogus. (For more judicial review statistics, see here and here.)
Yet, this claim requires close study. For a start, many judicial review claims are knocked out of the system at an early stage; they are either conceded by the Treasury Solicitors or withdrawn by the claimant. It is often quicker and cheaper for a case to be conceded early in the litigation process rather than fought out to the end. The initial decision will then be reconsidered by the Home Office. The concession of such cases by the Home Office in effect represents a successful legal challenge by the claimant: the Home Office has reconsidered its decision, which is the purpose of judicial review. Even if the substantive outcome is still negative for the claimant, the concession illustrates the role of judicial review in correcting legally flawed decisions. However, the number of claims that are conceded are not recorded within the official statistics. Nor does the government collect data concerning the reasons why cases are conceded. Nonetheless, it is clear that many immigration judicial reviews are conceded by the Treasury Solicitors because it is recognised that the impugned decisions are not legally watertight and could not be defended in court.
Even working on the basis of the figures that we have, it can be seen that the success rate for immigration judicial reviews is quite respectable. Some 54 immigration judicial review claims succeeded. The relevant denominator here is neither 8,649 (the number of immigration judicial reviews lodged with the Administrative Court) nor 607 (the number of such claims granted permission to proceed), but 126 (the number of such claims that proceeded to a substantive judicial review hearing). Taking this into account, the success rate of immigration judicial reviews in 2011 was 43 per cent – a clear indication that it is wholly wrong to categorise such claims as without merit; on the contrary.
On the other hand, the volume of immigration judicial reviews is distinctive and without precedent. It is perhaps understandable if there are concerns about the number and incidence of the caseload. If many administrative decisions are challenged, then government agencies can become paralysed, backlogs and delays accumulate, and costs increase.
But it is difficult at times to have much sympathy for the Home Office: its own approach toward judicial review and legal compliance has sometimes fallen short of the standards to be expected – occasionally drastically so. In 2008, one judge spoke of the “seeming inability of that Department to comply not merely with the law but with the very rule of law itself.” In other cases, the courts have trenchantly criticised the Home Office’s failure to comply with basic legal standards. Many examples could be given. Take Muuse for instance. A Dutch national of Somali origin had been unlawfully detained by immigration officials pending deportation to Somalia in circumstances where there was no right to deport. The Court of Appeal characterised the conduct of junior officials as “manifest and unsupervised incompetence” and “outrageously arbitrary” and decided to award exemplary damages. This negative approach toward compliance with basic legal norms is sometimes reflected in the department’s response to successful judicial challenges.
Another point is that claimants often resort to judicial review not to challenge decisions or to delay removal, but just to prompt the Home Office to produce an initial decision in the first place because all other avenues (such as letters and complaint to MPs) have failed. Judicial review is a vital tool for not just for challenging “crummy decisions but also inertia”. Given the well-reported backlogs and delays in immigration – especially asylum – decision-making, claimants may resort to judicial review just to get a decision out of the Home Office. In such circumstances, judicial review is not a means of blocking an administrative decision, but of getting one in the first place.
The principal issue that has arisen over recent years has been how to handle the volume of challenges. From the governmental perspective, the volume of judicial reviews affords claimants the opportunity to delay the immigration decision-making process – in particular the Home Office’s efforts to remove illegal entrants and unsuccessful asylum applicants from the UK. If the Home Office had its way, then judicial review of immigration decision-making would be abolished altogether.
From the judiciary’s perspective, things look very different. As senior judges have warned the executive, judicial review is increasingly essential to vindicate the rule of law. Yet, the judiciary has for some years held concerns about immigration judicial review, especially the volume of the caseload and the consequent pressure on the workload of the Administrative Court. Deputy High Court judges have increasingly been drafted in to help out. Another judicial concern has been the perceived repetitive and fairly low-level nature of the work. As the Judicial Working Group on regionalisation of the Administrative Court explained in 2006: “each case is intrinsically important, but the applications are numerous and repetitive. We do not consider that this is an appropriate use of High Court judge time.” A third concern on the judiciary’s behalf has been the risk of abusive and vexatious judicial review claims. Judges have warned law firms against making “hopeless” judicial review claims to halt the removal or deportation of illegal immigrants. In one case, the court stated:
“the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration. Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight. In many of these applications the person concerned has known for some time, at least a matter of days, of his removal. Many of these cases are totally without merit. The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal.”
The court continued to give a stark warning:
“late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.”
There is a long history to all of this. In 2003-04, the Home Office, under the political lead of the then Home Secretary David Blunkett, failed in its attempt to oust judicial review of all immigration decision-making. This was followed by changes to the structure of the immigration tribunal and then wider changes to the tribunals more generally, in particular the introduction of the two generic tribunals: the First-tier Tribunal and the Upper Tribunal. The Tribunals, Courts and Enforcement Act 2007 also conferred upon the Upper Tribunal a judicial review jurisdiction. However, immigration and asylum judicial reviews were explicitly excepted from this – with the ouster clause episode still in recent memory, objections were raised in Parliament to allowing such judicial reviews to be transferred.
At the government’s behest, Parliament returned to the issue in the Borders, Immigration and Citizenship Act 2009. Under this Act so-called “fresh asylum” claim judicial reviews were transferred to the Upper Tribunal. This category of case concerns asylum applicants who have proceeded without success through the initial and appellate decision-making process and then subsequently claim lodge a fresh asylum claim on the basis that a change in conditions in their country of origin have now generated a risk of persecution or ill-treatment on return. A refusal by the Home Office to consider any further submissions as a fresh asylum claim can be challenged through judicial review. More recently, under the Courts and Crime Act 2013, all immigration judicial reviews may now potentially be transferred from the Administrative Court to the Upper Tribunal.
The government’s argument for transferring all immigration judicial reviews has been the volume of such claims. As Lord McNally stated in 2012: “This volume of cases is unsustainable for the Administrative Court. It keeps High Court judges from other complex civil and criminal cases that they should be hearing. It has created a backlog and has added to waiting times for all public law cases heard by the administrative court”. It is fairly clear that the senior judiciary have been pushing for the transfer of immigration judicial reviews in order to relieve the pressure on the Administrative Court. At the same time, the judiciary has held the view that some immigration judicial reviews are plainly suited to the Administrative Court and should therefore remain there.
On the 21st August 2013, the Lord Chief Justice issued a practice direction to the effect that most, though not all, immigration judicial reviews would be transferred to the Upper Tribunal in November 2013. The following categories of immigration judicial reviews will not be transferred: a challenge to the validity of primary or subordinate legislation or of immigration rules; a challenge to the lawfulness of detention; a challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the United Kingdom Border Agency, or any authorisation of such Sponsors; a challenge to a decision as to citizenship; a challenge to a decision concerning asylum support; a challenge to a decision of the Upper Tribunal; a challenge to a decision of the Special Immigration Appeals Commission; or an application for a declaration of incompatibility under the Human Rights Act 1998.
Most of these exceptions are justifiable. It would be inappropriate to transfer nationality judicial reviews to the Upper Tribunal because the Immigration and Asylum Chamber of the Upper Tribunal has little expertise in nationality law – there is no right of appeal against most nationality decisions. Instead, judicial review has been the normal remedy and there have been very few such challenges in any event. It would also be inappropriate to transfer Cart-style judicial reviews from the Administrative Court to the Upper Tribunal: that would result in the Upper Tribunal reviewing itself. Similar considerations arise in relation to the Special Immigration Appeals Commission (SIAC) because part of SIAC’s membership is drawn from the Upper Tribunal immigration judiciary. Also, there is a strong case for keeping challenges to primary and secondary legislation and the Immigration Rules in the Administrative Court.
Despite the number of exceptions, the bulk of the immigration judicial review caseload will now be transferred to the Upper Tribunal. Such cases will include: challenges against removal directions and deportation; challenges against initial immigration decisions which do not attract any right of appeal to the tribunal; challenges against non-suspensive appeals (ie an asylum claimant with a claim certified as clearly unfounded may appeal only from outside the UK, but he or she can first seek judicial review of the decision to certify the claim as unfounded).
From one perspective, transferring immigration judicial reviews is part of a wider set of changes in the remedies available to individuals seeking to challenge immigration decisions. The general trend has been to restrict or abolish access to such remedies. For instance, the Courts and Crime Act 2013 has also abolished the right of appeal for family members refused visit visas. Other changes have included the withdrawal of legal aid for immigration appeals (except for asylum and bail cases) and the introduction of fees for lodging an appeal with the tribunal.
Transferring judicial review is, though, not abolition or restriction, but about changing the relevant venue. “Tribunalising” judicial review has clear advantages for the higher courts: off-loading the work elsewhere reduces the pressure on the High Court’s caseload and allows it to focus more clearly on the high-end work. The thinking is that it takes non-specialist High Court judges and Deputy High Court judges longer to deal with an immigration judicial review than it would a specialist judge.
It also has the effect of institutionalising the distinction between “constitutional” and “policy” judicial review challenges and “bureaucratic” and “individual” judicial review; the two categories will now, by and large, be streamed into separate forums. This is an important constitutional development. The High Court has, for centuries, provided the forum for legal challenges against executive action affecting personal liberty. Its jurisdiction is based upon common law tradition, the court’s own high status, and the quality and independence of High Court judges. By contrast, the Upper Tribunal was established in 2008 and the Immigration and Asylum Chamber has only been in existence since 2010. The Upper Tribunal is not simply another inferior judicial body; it has been designated by the Tribunals, Courts and Enforcement Act 2007 as a superior court of record and part of its role is to provide judicial leadership to the First-tier Tribunal. Nonetheless, it is a relatively new judicial institution and remains untested.
Do Upper Tribunal judges possess sufficient expertise and rank to determine immigration judicial reviews? Different views have been expressed. Speaking for the Government, Lord McNally in 2012 explained that “the Upper Tribunal over the past three years has demonstrated very clearly that it has both the experience and the expertise to deal with these matters”. According to Lord Woolf, “the Upper Tribunal has huge expertise, which except in a very small number of cases is not available to High Court judges. Therefore, it is not apparent that they have the ability to deal with these cases as expeditiously and effectively as the tribunal.” Similarly, in 2012 Sir Nicholas Blake (the first President of the Upper Tribunal (Immigration and Asylum Chamber)) noted that the development of a skilled body of Upper Tribunal judges versed in public law aspects of immigration law surely makes the cases for permitting a greater transfer of judicial review work from the over burdened and generalist Administrative Court. Through a good understanding of the subject matter the Upper Tribunal judge can handle these applications speedily, fairly and effectively and once the investment in administrative support and technology has been made can do so more economically than elsewhere. On this view, the Upper Tribunal is better equipped than the Administrative Court.
Another view is that there might be some optimism bias here about the capabilities and skills of Upper Tribunal judges. Such judges may be expert in a particular area of law and practice, such as immigration and asylum law. However, they are not necessarily expert in handling judicial review cases. Upper Tribunal judges are accustomed to determining substantive appeals and undertaking an error of law jurisdiction. Many of them will have spent their judicial career solely determining immigration and asylum appeals at tribunal level and might never have head cases outside of that jurisdiction. This is not to say that Upper Tribunal judges could not with training determine judicial review claims. It does, though, mean that their body of experience in hearing judicial review cases is limited.
More widely, there is a general tension in the tribunal-court structure between specialist tribunals, which are expert in their particular area but lower down the judicial hierarchy, and the higher courts, which are superior though generalist courts. On the one hand, expertise has advantages in terms of allowing specialist judges to conclude matters at an appropriate level of the wider judicial structure. On the other hand, generalist legal expertise is necessary to keep the junior albeit expert judges in check and to ensure that they do not become a law unto themselves. This tension can be seen reflected across a number of different issues over recent years, such as the degree to which the higher courts will find errors of law in tribunal decisions and the scope for judicial review of the Upper Tribunal. The issue turns upon two key issues. First, there is the degree of trust and confidence between different levels of the judicial hierarchy. While the higher courts will respect the expertise of the Upper Tribunal, there have been various cases in which the tribunal has been pulled up by the higher courts for making legal errors and mistakes. The second key issue is managerial and concerns the best deployment of limited judicial resources.
It is also necessary to take account of the changes that have been occurring at the tribunal level. For many years, the role of the immigration tribunal was simply to apply the Immigration Rules to facts of the case and the evidence presented; it was a fairly narrowly focused body that engaged in fact-finding and correcting errors of law. But, over recent years, the tribunal it has taken on new roles, such as: laying down general guidance on complex legal issues; grappling with wider human rights issues; issuing factual country guidance on the conditions in countries that produce asylum claimants; and absorbing and applying general public law principles as drawn from the higher courts not just in the UK, but also in Strasbourg and Luxembourg. That Upper Tribunal judges have to apply general public law norms, such as procedural fairness and proportionality, reduces significantly the distinction between their role and that of High Court and Deputy High Court judges in the Administrative Court. Add to this the flexible composition of the Upper Tribunal. Judges of the High Court are judges of the Upper Tribunal and may be requested to sit in the Upper Tribunal. Special arrangements may be made in a particularly important case by having a High Court or Court of Appeal judge to sit on the panel. On balance, the Upper Tribunal seems to be in a good position to take on immigration judicial reviews.
Another consideration is that the Home Office is not the average public authority defendant. It has a poor reputation for complying with and respecting the tribunal process, for instance, by failing to comply in a timely manner with directions issued by the tribunal and failing to disclose relevant matters. Consider what seems to be a recurrent feature of the Home Office’s relationship with the Administrative Court: the removal of an individual from the UK despite the court having ordered the Home Office not to remove the individual. In one such instance, the Administrative Court issued a second order requiring the Home Office to use its best endeavours to return the claimant. Even then the Home Office sought to have the second order set aside. Singh J was “very concerned” that the Home Office had failed to comply with his order. How would the Upper Tribunal fare in such circumstances? In the view of the Immigration Law Practitioners’ Association (ILPA), the Upper Tribunal has not demonstrated the same ability to deal with the UK Border Agency‘s conduct as a litigant as the High Court. According to ILPA, it continues to be the higher courts rather than the Immigration and Asylum Chamber of the Upper Tribunal that calls the UK Border Agency to account for its conduct as a litigant. We cannot know for certain whether or not the Upper Tribunal would deal as robustly as the High Court with instances of such blatant non-compliance. Past experience shows that the immigration tribunal has never really been that concerned about severely criticising the Home Office.
Apart from changing the venue for judicial review challenges, what else could be done here? It seems reasonable to assume that a large number of judicial reviews may not be solely an indication of a propensity to challenge, but also a symptom of problems elsewhere in the administrative process. Shifting some of the caseload elsewhere might relieve pressure on the High Court, but does nothing to deal with the underlying problems. An obvious point, then, is that more effort could be made to enhance initial decision-making. This could be done through better consideration of claims, more training for decision-makers, internal quality control checks, and seeking to learn appropriate lessons from successful judicial reviews and then changing policies and procedures as appropriate. As ILPA has noted, the volume of judicial reviews would be significantly reduced if the Home Office followed court rulings in individual cases. Currently, many individuals are required to bring their own judicial review challenge because the Home Office is or is proposing to treat them in a way that it has accepted to be wrong in another case. In other words, there is little learning within the department from one case to another. Learning from judicial review to avoid the repetition of past mistakes is a worthy aspiration. The realities of bureaucratic administration – operational silos within the agency, cuts to budgets and personnel, the lack of institutional memory, and the difficulties of disseminating organisational learning throughout a large governmental agency – often militate against this. Nonetheless, the Home Office could make much more of an effort in this respect. It should also be accompanied by a recognition of the importance of legal compliance.
Another long discussed solution is to simplify the rules and regulations that govern immigration decision-making. Much of the legislative framework governing immigration is highly complex and intricate. Indeed, the Home Secretary, Theresa May, when announcing the abolition of the UK Border Agency in March 2013, noted that one of the agency’s main problems concerned the legal framework in which it has to operate: “the agency is often caught up in a vicious cycle of complex law and poor enforcement of its own policies, which makes it harder to remove people who are here illegally”. The agency’s “complicated legal framework often works against it”. It is not just the complexity of the law; it is also the outmoded nature of some of it. As Lord Sumption recently noted in New London College Limited, “The Immigration Act 1971 is now more than forty years old, and it has not aged well. It is widely acknowledged to be ill-adapted to the mounting scale and complexity of the problems associated with immigration control.”
In 2009, under the previous government, the agency published a draft simplification bill, but nothing much came of it and the bill was never included in the government’s legislative programme let alone enacted into law. An immigration bill was announced in the recent Queen’s Speech, but this is intended to confine the scope of Article 8 ECHR and reduce the ability of immigrants to access health care. It seems unlikely that the new Bill will provide the much-needed wide-ranging comprehensive simplification of immigration law – yet this is precisely what is required to make the law easier and simpler to apply and to reduce the incidence of errors.
Looking to the future, it is possible that to envisage other chambers of the Upper Tribunal exercising a judicial review jurisdiction for handling “individual” judicial review claims while the constitutional and policy challenges remain with the Administrative Court. The government is currently consulting on, amongst other things, transferring planning judicial reviews into a new Land and Planning Chamber of the Upper Tribunal. This reinforces the sense that the First-tier and Upper Tribunals now comprise the essential parts of the public law system for challenging government decisions. In the meantime, it remains to be seen how the transfer of immigration judicial reviews will work out in practice – and this does not imply just an internal government review. Instead, what is required is an independent empirically based study of the Upper Tribunal’s exercise of its judicial review jurisdiction. In November 2012, the Joint Committee on Human Rights noted that there had not been any systematic review “of the exercise by the Upper Tribunal of its judicial review jurisdiction generally, and there is therefore no evidence before Parliament of how the Upper Tribunal is performing that significant judicial role.” Given the volume of judicial reviews being transferred, the need for such a systematic review remains compelling.
Robert Thomas is Professor of Public Law at the University of Manchester
Suggested citation: R. Thomas, ‘Immigration judicial reviews’ UK Const. L. Blog (12th September 2013) (available at http://ukconstitutionallaw.org)