Tag Archives: Tribunals Courts and Enforcement Act 2007

Liz Fisher: The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law

fishereOne of proposals in the Ministry of Justice’s paper on Judicial Review: Proposals for Further Reform is the creation of a new specialist planning chamber as part of the Upper Tribunal. While planning tends to be thought of as a niche area of public law (and a technically dense one at that) the way in which the paper frames discussion should give public lawyers pause for thought. This is particularly when planning judicial reviews have often been cited by government representatives as examples of why reform is needed to judicial review. The Further Reforms paper is no exception – the only two ‘case studies’ (albeit no case names) given in the paper are of judicial review of planning decisions (p 5 and 6).

The starting point in the proposal for the creation of a specialist planning chamber of the Upper Tribunal is the assumption that there is a general delay in cases being heard (p15). It is also noted that a factor leading to further delay is that judicial reviews in planning cases are not always heard by judges with expertise in the area thus lengthening the time cases take to be considered (p16). These are issues that have already been subject to some judicial development, the most recent in July 2013 when a Planning Fast Track was created which allows for the early identification of planning cases as well as the assigning of planning cases to judges who have expertise in the area (p16-7). That reform is still in its very early days, but the Ministry of Justice feels further reform is needed in the form of transferring both statutory challenges and judicial reviews to a specialist chamber of the Upper Tribunal which would have ‘specialist planning judges deployed to it’ (p 18) The Ministry argues that ‘the Government’s view is that this is likely to deliver greater benefit still’ (p18). The paper suggests that rather than creating a new Planning Chamber the Lands Chamber would be renamed the Lands and Planning Chamber (p 18).

I have no deep objection to the idea of a specialist planning tribunal or court. Specialist planning and environmental courts that carry out judicial and merits review are a successful feature of many common law jurisdictions. The NSW Land and Environment Court is the best example of such a judicial institution and it has developed a complex body of substantive and procedural doctrine in the planning context. There has also been a long debate in the UK about the merits of having a specialist environmental court here (see this virtual collection of essays on the topic). Much of the debate has focused on a judicial body to consider appeals under environmental legislation and in 2010 a First Tier (Environment) Tribunal was created. Macrory in a recent article has described the creation of that Tribunal as a product of ‘unexpected alignments’ and the development of a specialist planning chamber could be seen in the same light.

Indeed from one perspective the Ministry of Justice’s proposal could be understood as a catalyst for productive debate about a specialist planning chamber. This is particularly when the lack of substantive detail in the paper gives it a tentative feel and the second question for consultation on the specialist chamber proposal concerns ‘what procedural requirements might deliver the best approach’ in such a tribunal (p18). But as Jasanoff has put it so pithily ‘if a problem is framed too narrowly, too broadly, or wrongly the solution will suffer from the same defects’ (Sheila Jasanoff, Science and Public Reason (Earthscan 2012) 179).

And here the ‘problem’ is framed in a very narrow way. As noted above, the driving logic of this proposal is to do with reducing delay caused by judicial review actions, which is cited as hindering economic growth and adversely impacting upon both taxpayers and developers (p6-7). Even the role of expert judges is promoted in terms of reducing delay (p16 and p18). Overall, the Ministry of Justice states that these reforms will ‘reassure developers (both national and international) that any challenges are resolved quickly’ (p18). The consultation also asks whether respondents have ‘any examples/evidence of the impact that judicial review, or statutory challenges of government decisions, have on development, including infrastructure?’ (p18).

The problem with this focus is that planning law and judicial review are not just about making decisions as quickly as possible. Planning is a polycentric activity concerned with finding an acceptable use of land in circumstances where there is a range of different interests within interlocking communities. The technical nature of planning law, its heavy reliance on policy, the important democratic role for central and local government, and the significant role for dispute resolution all reflect that fact. Likewise, there is no discussion in the paper about the nature of judicial review as a check on power beyond a statement that the ‘Government will ensure that judicial review continues to retain its crucial role’ (p 5). That ‘crucial role’ is never discussed. The whole paper creates a dichotomy that is summed up in the Foreword: ‘We need dynamism and growth, not delay and expense’. It would seem that judicial review of planning decisions is being ascribed to the latter category and this impression is reinforced by the focus on the speed at which cases are processed rather than the substantive legal issues raised in planning challenges (p 17).

Following on from that, what experiences in other jurisdictions and the UK debate have highlighted is any specialist planning court or tribunal is a legally complex judicial institution that requires careful crafting and gives rise to a range of legal issues. In a recent paper, the highly respected Chief Justice Brian Preston of the New South Wales Land and Environment Court listed what he saw as  the ‘characteristic features’ of a successful specialist environmental and planning court. These include: the necessary status and authority; independence and impartiality; a comprehensive and centralised jurisdiction; knowledgeable and competent judges; a multi-door courthouse; access to scientific and technical expertise; that it facilitates access to justice; that it is responsive to environmental problems; that it develops its own jurisprudence; that it has an underlying ethos; that it is flexible and innovative; and that it achieves just, quick and cheap resolution of disputes.

Now I recognise that the Ministry of Justice’s proposal for a specialist planning chamber is not the same thing as a specialist environmental court but Preston’s list makes clear that the success of any adjudicative body in this area of operation is dependent on the consideration of a multitude of factors. Speed of resolution is relevant but it is not the only issue. It is also the case that any of the issues in Preston’s list require careful consideration. For example, the experience in other jurisdictions show that issues to do with the nature of expert judges is by no means straightforward – raising as they do questions about how to foster both legal expertise and expertise in the types of problems that planning relates to.

Moreover there is no discussion by the Ministry of Justice of the legal implications of such a proposal. Again, the experience in other jurisdictions is that the development of a specialist adjudicative body must be closely interrelated with the development of substantive law in that specialist area as well as the overall judicial structure. The feel of this proposal is that such a chamber is simply a further development of the fast track procedure (p 17).  For example, there is no mention of how this jurisdiction fits in with the wider logic of the Tribunal structure and the Planning Inspectorate structure. This is particularly significant when the type of cases that are being proposed to be transferred to it include a range of cases from a range of legal sources. Thus it includes statutory challenges under different legislative schemes, challenges from an appeal structure outside the existing Tribunal structure (the Planning Inspectorate), and common law judicial review actions that are often being brought by third party objectors as this is their only legal means of challenging a decision. As footnote 24 makes clear this will require a mixture of legislative and procedural reform. The tribunal structure as created by the Tribunals, Courts and Enforcement Act 2007 is a flexible one and the ‘judicial review’ jurisdiction has broad scope but it is still a jurisdiction in which a statute has a role to play. Furthermore, as the judgments in the Divisional Court ([2009] EWHC 3052), Court of Appeal ([2010] EWCA Civ 859) and Supreme Court in Cart v Upper Tribunal made clear in a different legal context the Upper Tribunal is a complex, and at times ambiguous institution. This is not a criticism of the Upper Tribunal. As Sedley LJ noted in the Court of Appeal in Cart the ‘edifice’ of which the Upper Tribunal is part of is a ‘landmark in the development of the United Kingdom’s organic constitution’.

Overall the proposal for a specialist planning chamber is promising but it needs further careful and wide-ranging debate that involves public law practitioners and scholars. The proposal is not just a planning law proposal but also a public law one that raises questions about the rule of law. This was a point recently well made by Preston CJ in discussing Australian law reform in this area (Brian Preston, ‘The Enduring Importance of the Rule of Law in Times of Change’ (2012) 86 Australian Law Journal 175). By only focusing on the speed that cases are decided there is a danger that these other issues may be side-lined.

The narrowness of the frame for debate in the Further Proposals paper does not only relate to the focus on delay in judicial review however. The proposal is also pervaded by a sense of urgency and the Ministry state that they ‘seek to deliver the new Chamber as swiftly as possible’ (p 18) although footnote this with a comment that speed will be limited by the fact that ‘changes to procedural rules would take 6 months to develop’ (fn 24). And it is here where public lawyers should be particularly concerned. The emphasis on the need for ‘swift’ reform makes any call for further discussion seem an act in time wasting. But it isn’t – reform grounded in a proper understanding of the legal issues is likely to yield a far more successful outcome that reform designed with only one aspect of a complex problem in mind.

Liz Fisher is  Reader in Environmental Law at Oxford University.

Suggested citation: L. Fisher, ‘The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law’ U.K. Const. L. Blog (1st November 2013) (available at http://ukconstitutionallaw.org).

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Robert Thomas: Immigration judicial reviews

thomasThere 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)

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Mark Elliott and Robert Thomas: Cart and Eba—the new tribunals system and the courts

The Tribunals, Courts and Enforcement Act 2007 fundamentally reshapes both the way in which tribunals relate to one another and the way in which they relate to courts. The disparate collection of tribunals that had grown up ad hoc as policymakers sought ways of supplying administrative justice has been largely replaced with a single new juridical structure consisting of the First-tier and Upper Tribunals. Those institutions are at once more court-like than their predecessors—in terms, for instance, of judicial independence—and yet more separate from courts than ever before: those dissatisfied with a decision of the First-tier Tribunal can appeal (with permission) to the Upper Tribunal, but onward appeals to the Court of Appeal are to be a rarity. The combined effect of section 13(6) of the Act and an administrative order made thereunder is that the normal second-tier appeals criteria apply: permission for onward appeals against substantive decisions of the Upper Tribunal to the Court of Appeal can be granted only if the appeal would raise “some important point of principle or practice” or in the face of “some other compelling reason”. And the powerfully-constituted Court of Appeal that recently decided PR (Sri Lanka) v Secretary of State for the Home Department has made it clear that those criteria are to be applied as restrictively as their language implies.

Yet the 2007 Act is silent about whether courts can scrutinize the Upper Tribunal’s decisions by way of judicial review, as distinct from appeal—an issue that assumes practical importance in relation to those categories of decisions against which no right of appeal to the Court of Appeal lies. The main category here consists of decisions by the Upper Tribunal to refuse permission to appeal to itself against decisions of the First-tier Tribunal. In the absence of a right of appeal against such decisions, can they be judicially reviewed? This was the question with which the Supreme Court was confronted in R (Cart) v Upper Tribunal; R (MR (Pakistan)) v Upper Tribunal and Eba v Advocate General for Scotland.

In these cases, two individuals whose cases had been refused permission to appeal by the Upper Tribunal had then sought judicial review of that refusal. Would judicial review be available in such cases? Or to ask the same question in somewhat wider terms: what type of legal control should tribunals be subject to? What does the rule of law mean in practice?

In we go back in time to the 1950s, we can find the traditional approach toward legal control of tribunals by the higher courts being articulated by the Franks report on Tribunals and Inquiries (Cmnd 218, 1957). The Franks Committee was “firmly of the opinion that all decisions of tribunals should be subject to review by the courts on points of law” (para. 107). At around the same time, Lord Denning had noted in Gilmore [1957] 1 QB 574, 586 that “if tribunals were to be at liberty to exceed their jurisdiction without any check by the Courts, the rule of law would be at an end.”

Of course, since the 1950s, there have been major structural and operational changes for tribunals and the courts – not least the establishment of the First-tier and Upper Tribunals. But there has also been a vast increase in the number of cases decided by tribunals, and in particular, the emergence of a high volume of immigration and asylum litigation in the higher courts – and many of those cases end up in the higher courts after they have been dealt with the immigration tribunal. This caseload has imposed a burden on the higher courts and also lengthened the overall decision-making process in immigration and asylum cases. It is well-known that, in particular, the Administrative Court has over recent years been overwhelmed by challenges arising from the asylum and immigration context and, given the limited resources of the court, the handling of these challenges has generated delays elsewhere in the court’s caseload. Such delays have in turn generated concerns about public confidence in the administration of justice: “justice delayed is justice denied”.

Given this background, the Supreme Court in Cart had to decide what was the appropriate role for judicial review in the new tribunals system: which of the following three paths would the Supreme Court take? First, the court could have accepted that judicial review had been excluded altogether. Secondly, it could have insisted that “full” judicial review remained available, unaffected and unmodified by the new tribunals structure. Or the court could have beaten-out a middle-path in which judicial review remained a possibility, but only for a limited category of case. Which option did the Supreme Court prefer?

As the regards the first option – exclusion of judicial review – the government had argued in Cart that the statutory designation of the Upper Tribunal as a “superior court of record” rendered it immune from judicial review. However, this contention was, as Lady Hale put it, “comprehensively demolished” by Laws LJ in the Divisional Court. Judicial review could be excluded (if at all, which Laws LJ doubted) only by the use of explicit language—a criterion not met by merely designating the Upper Tribunal a “superior court of record”. Sir Andrew Leggatt, in his review of tribunals that prefigured the 2007 Act, had assumed otherwise. The status, expertise and independence of what was to become the Upper Tribunal was such as to render judicial review of it inappropriate. It would therefore be necessary, said Leggatt, for the appellate-level tribunal either to be designated a “superior court of record” or for judicial review of it to be explicitly ousted. (Leggatt preferred the latter option for presently irrelevant reasons.)

However, just because the Upper Tribunal was not immune from judicial review does not mean that it is, or should be, subject to the full rigours of the supervisory jurisdiction. The constitutional case for full-scale review of administrative bodies consists, in large part, in the need for independent courts to have ultimate responsibility for seeing that executive decisions are taken in accordance with law. The case for judicial review of judicially independent, expert tribunals is clearly weaker—or at least different. For the Divisional Court and the Court of Appeal in Cart—but not for the Court of Session in Eba—the nature of the new tribunals system was such as to render necessary and appropriate only a very limited form of court-supervision. Judicial review would lie only in the face of a pre-Anisminic outright excess of jurisdiction or a fundamental denial of procedural justice.

The Supreme Court, however, disagreed. Its unanimous view was that the Administrative Court should be prepared to review decisions of the Upper Tribunal if—but only if—the case raises some important point of principle or practice or if there is some other compelling reason for judicial review. Thus the Supreme Court has aligned precisely the criteria that limit judicial review of the Upper Tribunal with those that condition the exercise of rights of appeal (where they exist). To put the point succinctly, the Supreme Court went for the middle-path: judicial review of the Upper Tribunal would be available but only on the basis of the second-tier appeals criteria.

In doctrinal terms, it is hard to know what to make of the Supreme Court’s decisions in Cart and Eba. Sedley LJ, in the Court of Appeal, at least nailed his colours to the mast: the Upper Tribunal was to be regarded as having an unusually broad jurisdiction, such that post-Anisminic errors of law were to be considered intra-jurisdictional. In contrast, Lady Hale and Lord Dyson—who, in the Supreme Court, addressed this point most directly—were highly resistant to the idea of reintroducing (as the Court of Appeal’s approach would have) the problematic distinction between jurisdictional and non-jurisdictional errors of law. Meanwhile, in Eba, Lord Hope laid to rest the notion—sustained by Lord President Emslie’s judgment in Watt v Lord Advocate—that the distinction persisted in Scots administrative law. Yet while the Supreme Court’s refusal to reintroduce the distinction between jurisdictional and non-jurisdictional errors of law makes its approach more doctrinally orthodox than the Court of Appeal’s (at least if we treat the mantra that all errors of law are jurisdictional as the modern orthodoxy), the Supreme Court’s analysis is also largely doctrinally empty. Indeed, the principal hallmark of its judgments in Cart and Eba is a highly pragmatic approach, whereby the contours of judicial review are shaped by practical concerns pertaining to “proportionate dispute resolution” and the efficient deployment of scarce judicial resources. The upshot, then, is that doctrinal tools such as jurisdiction—which promise but often fail to deliver a priori guidance as to the reach of judicial review—are eschewed in favour of ex post considerations pertaining (for instance) to the importance of the issues raised by the case.

What then were the real deciding factors in Cart? Three can be identified: (i) the type of interests being served by onward challenges; (ii) limited judicial resources; and (iii) tribunal expertise.

As regards the first factor – the type of interests being served by onward challenges – it is important to appreciate that onward challenges can serve a number of different purposes – private and/or public. The private purpose of such challenges is that of correcting those legal errors in the decision which result in an injustice to the individual claimant. By contrast, onward challenges also serve wider public purposes: to ensure public confidence in the administration of justice; to clarify and develop the law, practice and procedure; and to maintain the standards of first-instance courts and tribunals. Given that the position post-Cart is that only those challenges that fulfil the second-tier appeals criteria will now be considered, legal errors that only affect the specific individual case will not qualify. The second-tier appeals approach expressly contemplates that some decisions, even though they contain an error of law, will not be capable of being challenged because they raise no important point of principle or practice or other compelling reason. The Supreme Court did not consider that such challenges were sufficiently important to attract any judicial review.

This distinction between the different type of interests served by onward challenges gives us some appreciation of what is happening in Cart and how the second-tier appeals criteria are to be applied in practice. But, at another level, it just begs the question: why is judicial review to be rationed in this way? Why are those challenges serving broader public purposes to be preferred over those serving private interest exclusive to the individual claimant?

The answer is clear: the Supreme Court recognized the need for proportionate dispute resolution, that is, the need to ensure that limited judicial resources are allocated appropriately and efficiently. The following quotations (from Cart) give a flavour of the views of the Supreme Court. According to Lady Hale, “[t]here must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case.” Lord Phillips commented that “in exercising the power of judicial review, the judges must pay due regard to the fact that, even where the due administration of justice is at stake, resources are limited.” Likewise, Lord Brown noted that “the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”

While no decision-making system is perfect or infallible, a certain level of error must be tolerated, according to the Supreme Court, because the costs of trying to correct every error would be disproportionate given limited available judicial resources. There is a clear value-judgement here by the Supreme Court: merely pointing to a litigant’s private interest in the correction of error is insufficient to justify judicial review of the Upper Tribunal’s refusal of permission to appeal; this is where the road ends.

The third consideration is the expertise of the Upper Tribunal. The Supreme Court Justices’ opinions are replete with comments to the effect that the Upper Tribunal is to be recognized as a specialist and expert tribunal. Cart is a clear endorsement that the higher courts have considerable confidence in the Upper Tribunal. The different chambers of the Upper Tribunal administer highly complex areas of law – social security, immigration, and so on – and therefore attain a particular expertise. Consequently, the courts should adopt an appropriate posture of judicial restraint.

It was on this basis that Lord Phillips’ “initial inclination was to treat the new two tier tribunal system as wholly self-sufficient”, but he had been subsequently persuaded that there was, “at least until we have experience of how the new tribunal system is working in practice, the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system.” In other words, there is always the possibility that the Supreme Court may at some stage revisit Cart.

The notion of tribunal expertise is though far less clear-cut than it is sometimes assumed to be. It may not always be the case that tribunals possess the relevant expertise – that will depend upon many other factors such as: tribunal appointments; training; appropriate allocation and deployment of tribunal personnel; and the caseload pressures on the tribunals. Then there is also the future of legal aid funding and – in the absence of such funding – the willingness of Upper Tribunal judges to adopt a more inquisitorial approach when considering applications for permission to appeal to search for an important point of law that an unrepresented appellant might have been unable to draw out.

The positive aspect of Cart is that the second-tier appeals criteria should ensure that important points of principle or practice do not become fossilised within the Upper Tribunal. At the same time, the limitation upon judicial review is a broader reflection of the fact that in managing a large-scale administrative justice system, the notion of proportionate dispute resolution will sometimes mean that the cost of a case will outweigh its value.

Mark Elliott is a Fellow of St. Catharine’s College and a Senior Lecturer in Law at Cambridge University.

Robert Thomas is Professor of Public Law at the University of Manchester.

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