Judicial Review: How Much is Too Much? A View of Eba, Cart and MR (Pakistan) from the Asylum and Immigration Perspective
| Pages | 210-223 |
| Author | Sarah Craig |
| Published date | 01 May 2012 |
| DOI | 10.3366/elr.2012.0104 |
| Date | 01 May 2012 |
In
In these three cases, the Supreme Court confirmed that judicial review of unappealable decisions of the Upper Tribunal was still available. Excluding the Upper Tribunal from the supervision of the higher courts would have diminished the rule of law which is the basis on which judicial review rests.
Before expanding on the different perspectives, this paper outlines how the three cases arrived at the Supreme Court.
The Upper Tribunal refused Mr Cart permission to pursue an appeal based partly on the Child Support Agency's failure to tell him that his child maintenance payments had changed. In December 2009, the Divisional Court had to decide whether, post-TCEA, Mr Cart could still judicially review the Upper Tribunal.
ss 15, 16, 17 and 20.
s 3(5).
In July 2010, while the Court of Appeal could not describe the Upper Tribunal as the High Court's
The tribunals structure was designed so that errors could be corrected within rather than outside it and this justified returning to pre-
Meanwhile, Mrs Eba's judicial review arose from the Upper Tribunal's refusal to allow her to pursue an appeal regarding her Disability Living Allowance claim and, in March 2010, the Outer House dismissed it because her case was not exceptional.
At paras 50–51 citing
At paras 53–54.
At para 60.
C Himsworth, “The Upper Tribunal in the higher courts” (2011) 15 Edin LR 92.
MR's application for judicial review arose from the Upper Tribunal's refusal to allow him to pursue an asylum appeal based on his conversion to Christianity. The appeal rights of Mr Cart and Mrs Eba had already run out before he applied for asylum, but his case was permitted to leapfrog the Court of Appeal. It was an important addition firstly because immigration and asylum, together with social security, make up the great bulk of the business of the new tribunals system.
The Tribunals Service was launched on the 3rd November 2008 and the Immigration and Asylum Chamber was established on the 15th February 2010.
Baroness Hale explains why the post-TCEA tribunals structure still requires review. Diverse types of tribunal emerged in the twentieth century, tailored to the subject matters they deal with, and the range of specialist areas of law on which they adjudicate. But the independence of tribunals became problematic: while their sponsoring departments would regard them as appropriately expert and independent, and designed to ensure that citizens got the benefits they were entitled to, others might see tribunals as “accomplices” with the department in denying the entitlements of claimants.
At para 17 per Baroness Hale.
The system improved as a result of the Franks Report's insistence on openness and accountability to the higher courts.
At para 15 per Baroness Hale. See
At paras 23 and 54 per Baroness Hale.
Judicial review is still required because the chances of tribunals themselves giving leave to approach the higher courts are remote. The Upper Tribunal, as a superior court of record, sets precedent for the First Tier and Upper Tribunals to follow, and so they will refuse permission to appeal. From the tribunals' perspective, the chances of the higher courts overturning the Upper Tribunal will also appear remote – especially where the courts have set the precedent – and there is no other route by which the question will reach them. High Court judges may sit in the Upper Tribunal, but they will not be responsible for all decisions...
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