Anyone who has ever tried to study judicial review in England and Wales empirically knows it is a little like digging for gold without a metal detector: it is difficult to know where to dig and there is also no guarantee that you will find what you are looking for.
In a characteristically well-argued and useful blog post, Joe Tomlinson & Alison Pickup argued that the IRAL Panel dug for information about the operation of Cart judicial reviews (CJRs) in the wrong place. The Panel tentatively offered a figure – that 0.22% of applications result in success – which took account only of the limited subset of successful cases (12) available on BAILII. As Tomlinson & Pickup emphasise, this is not in any way a reflection of the rigour behind the IRAL report, which is a model of thoughtfulness, diligence, and nuanced analysis (especially considering its timeframe). Rather, it speaks to the difficulties of navigating the present judicial review information landscape.
This post identifies a couple of spots in which one might dig to obtain further information about how CJRs have operated in practice. The MoJ is presently consulting on the question of how Cart should be overturned. This question rightly recognises that the choice is not necessarily all (leaving Cart intact) or nothing (full ouster). The Cart approach could plausibly be replaced by (a combination of) several options – a reformulated permission test, confinement of the CJR process to certain categories of case, amendment of tribunal appeal processes, for instance. Digging in the spots identified below will not yield a complete picture – every source of information on judicial review has its weaknesses – but may well upturn important nuggets which help to guide the choice.
Tomlinson & Pickup conclude that ‘we do not know how many Cart judicial reviews get permission or are ultimately successful, but… neither does the Government.’ A first place which it might be fruitful to look is MoJ data. On its Civil Justice Quarterly Statistics pages, the MoJ makes available a ‘Civil Justice and Judicial Review data’ zip file. The most up-to-date version contains a table of 136,118 cases brought between 2000 and 2020 inclusively. Although the file purports to offer ‘judicial review’ data, it contains details of challenges usually brought as statutory appeals (e.g. professional discipline, extradition). It is not perfectly clear, but the table therefore seems to be detailing challenges brought to the Administrative Court rather than judicial review challenges per se.
The table includes details of 6,293 cases dating back to 2012 which are labelled ‘Cart- immigration’ (5,870) or ‘Cart – other’ (423). Further information about these cases (and others) is given in the table. Different questions can be asked of this data which could help to fill in some of the gaps in understanding CJRs.
For example, it is possible to compare the quantum of Cart applications with the totality of cases detailed in the table from the period 2012-Septemeber 2020: 55,084. This comparison indicates that Cart challenges made up 11.42% (6,293/55,084) of cases in this period. At least at first sight, this figure seems to lend some credence to the view that the Cart process has absorbed considerable judicial time and resources.
The question, of course, is whether this judicial time is worth it. Here a consideration of the fate of cases may be helpful. The table below summarises what can be gleaned from the spreadsheet about the 6,293 CJRs:
|Granted permission by Administrative Court but no substantive hearing (note the effect of a grant of permission is to quash the UT decision unless a party requests a substantive hearing within 14 days)||330|
|Granted permission by Administrative Court and allowed at substantive hearing||9|
|Refused permission by Administrative Court||5,481|
|‘Other’ in permission column||446|
|Refused permission by Administrative Court, but granted permission on appeal to Court of Appeal||26|
|Refused permission by Administrative Court but appeal ‘allowed’ by Court of Appeal||1|
The data therefore suggests that applicants obtained a result which usually has the effect of remitting the appeal back to the Upper Tribunal for further consideration in 366 cases. Expressed as a percentage, this represents 5.34% (366/6,293) of CJRs detailed in the table.
One complication is what to make of the 446 cases for which the permission column reads ‘other.’ The most obvious explanation is that these were challenges which were withdrawn. If this is right, there is a good argument for subtracting them from the 6,293 total, given that withdrawn cases presumably do not absorb much in the way of judicial resources. This would bolster the positive outcome rate for applicants in a CJR to 6.26% (366/5,847). While it is, of course, not possible to know the reasons for withdrawal of these applications (and, indeed, whether this is the explanation), it seems reasonable to suspect that a common reason is agreement of a mutually satisfactory outcome. Within this 446 cluster, in other words, might be more cases in which the CJR process contributed to a favourable outcome of some kind for an individual.
Readers will probably be struck by the fact that these percentages, while not high, are considerably higher than the widely publicised 0.22% figure. It is important, however, to recognise that the IRAL Panel was looking for ‘success’ of a particular kind: concrete evidence of a CJR which resulted in a FtT decision being overturned. Unfortunately, the reality is that it is likely not possible (on publicly available data at least) to know for sure how many CJRs fall into this category. It is trite that permission in a CJR does not necessarily result in a successful UT appeal. But there is no obvious way to identify and trace through all of the 366 successful CJRs to find out what happened in the end. It seems unlikely, however, that the number is as low as 12.
Reported Cases & Upper Tribunal Decisions
A second site at which it might be useful to further dig is court and tribunal decisions. As the IRAL report points out, there is a small body of reported court decisions which consider the application of the Cart test (the panel identified 45 which are helpfully listed in footnotes in the report). Around four years ago, I undertook an analysis of the available case law and argued that the courts had incurred some difficulty in making sense of the second appeals test in this context.
Perhaps more illuminating for present purposes, however, would be to look at Upper Tribunal decisions which make reference to ‘Cart.’ A search through the Immigration and Asylum chamber’s decisions on its own website yields a significant number. (Though not all of these decisions have been through the Cart JR process, many have). I have not, largely due to time constraints, been able to undertake a systematic study of these decisions. This would, however, surely be an extremely valuable endeavour and may well make visible important patterns.
For example, one thing which is striking on even a brief read through these decisions is that a significant portion of decisions in which the UT appeal is, in the end, successful appear to involve a claim on the applicant’s behalf that she will face persecution if removed to her nation state. This may well indicate that the Cart JR process has played an important role in preventing wrongful removals in these types of case. If that is right, it should give the MoJ reason to pause before removing the possibility of a Cart JR in this type of case, without at least making further provision to safeguard against error.
There is a line in Lord Phillips’ judgment in Cart where his Lordship explains that:
I have been persuaded that there is, 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 real significance slip through the system.para , emphasis added
This suggests that Lord Phillips at least was not averse to ongoing consideration of the CJR process as ‘experience of… the new tribunal system’ built. (See also recent comments by Lord Hope). This post highlights how difficult it is to obtain a full understanding of this ‘experience.’ There are places to look, and no stone should be left unturned. However, perhaps more than anything, the reform to judicial review which the MoJ could most usefully consider is how to compile and make accessible fuller information on the operation of judicial review, tribunals system and the ways in which they interact in future.
Dr. Joanna Bell, St Edmund’s Hall, University of Oxford
(Suggested citation: J. Bell, ‘Digging for Information about Cart JRs’, U.K. Const. L. Blog (1st April 2021) (available at https://ukconstitutionallaw.org/))