R (G) v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 25 March 2004 |
| Neutral Citation | [2004] EWHC 588 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 March 2004 |
| Docket Number | Case No: CO/0103/2004 |
[2004] EWHC 588 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice COLLINS
Case No: CO/0103/2004
CO/0972/2004
Mr Raza Husain (instructed by TRP, Solicitors) for the Claimant in ‘G’
Mr Michael Fordham (instructed by The Refugee Legal Centre) for the Claimant in ‘M’
Miss Elisabeth Laing (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
1. Both these claims constitute attempts to pursue a judicial review against decisions of the Immigration Appeal Tribunal (I.A.T.) refusing permission to appeal notwithstanding that a High Court judge has in each case rejected an application under s.101(3) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). I had given permission for the claim to be made in G but had rejected that in M. M was therefore listed before me as an oral renewal of the application for permission. In the course of the hearing without objection from Miss Laing I granted permission and dispensed with all procedural requirements so that each claim could be considered on the same footing.
2. I have only been concerned with the question in what circumstances, if at all, a claim for judicial review can survive s.101 of the 2002 Act. Miss Laing submits that the provision of statutory review means that the court now has no jurisdiction to permit judicial review or, if it has, it should never allow a claim to proceed. Mr Husain and Mr. Fordham submit that the jurisdiction has not been removed; indeed, it could not be in the absence of the clearest possible words and there are none here. They go on to submit that the court should, notwithstanding the rejection of statutory review, be prepared to consider a claim and, if persuaded, perhaps after oral argument, that the I.A.T. had erred in law, grant relief. They recognise that considerable weight should be attached to the rejection of the application for statutory review and that practitioners should act responsibly and with great circumspection before making any such claim. Nevertheless, since the jurisdiction continues to exist, and particularly since in this jurisdiction an error can be literally fatal and the most anxious scrutiny is required:(see Bugdaycay v Secretary of State for the Home Department [1987] A.C. 514) and observations to the same effect in many subsequent cases, judicial review should be permitted.
3. The problem of increasing numbers of asylum seekers has exercised the government over the past ten years or more and has led to a number of Acts of Parliament which have set up various systems, whether administrative or concerning appeals, to try to deal with the problem. There are among the genuine asylum seekers a very large number of economic migrants whose goal is to better themselves in this country. Thus a very large percentage of those who claim asylum are anxious to achieve as much delay as possible before their claims are finally disposed of. So long as appeals are pending, they can remain here and, since they are forbidden to work (a prohibition which is often disregarded) they are usually entitled to at least minimum support at public expense. Furthermore, appeals and judicial reviews are usually conducted on legal aid and all too frequently by legal advisors who pay insufficient regard to whether any claim in truth has merit. Practitioners are too ready, so it is said, to provide advice which obtains legal aid in circumstances where the claims are in reality without merit. Thus any delay in the appellate system costs the country a great deal of money.
4. The government clearly believed that one of the significant causes of delay was judicial review. The process could take months since a claim, if unmeritorious, would be refused on paper and then could be renewed orally. If that renewal was rejected, there was a right to go the Court of Appeal. In the White Paper published before the 2002 Act, under the title ‘Secure Borders, Safe Haven’ (CM 5387, February 2002), delay was identified as a real problem and measures were to be introduced (as they were) to reduce such delay and to streamline both the administrative and the appellate processes. A measure then identified to seek to avoid judicial review was to make the I.A.T. a superior court of record. For a number of reasons, not least of which was a concern that such a provision would not work, that proposal was abandoned and, by an amendment tabled when the 2002 Act was going through Parliament, statutory review was introduced. There was to be a short time limit and the opportunity for any significant delay was to be removed by making the decision of the High Court judge, who would deal with the application on paper, final. It was anticipated that the whole statutory review process would normally take no more than 4 weeks, that is to say, 2 weeks to apply and a decision by the court within 2 weeks of the application being made. That anticipation has been fulfilled. It would, as must be obvious, be frustrated if claims such as these are permitted to proceed. But that is, of course, not necessarily a good answer to the claims if judicial review can and, in the interests of justice, should be allowed.
5. Section 101 of the 2002 Act reads:-
“Appeal to Tribunal
(1) A party to an appeal to an adjudicator under section 82 or 83, may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.
(2) A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunals decision on the ground that the Tribunal made an error in law.
(3) Where an application is made under subsection (2) –
(a) it shall be determined by a single judge by reference only to written submissions,
(b) the judge may affirm or reverse the Tribunal's decision,
(c) the judge's decision shall be final, and
(d) if, in an application to the High Court, the judge thinks the application had no merit he shall issue a certificate under this Paragraph (which shall be dealt with in accordance with Civil Procedure Rules).
(4) The Lord Chancellor may by order repeal subsections (2) and (3)”.
Part 54 of the CPR has been amended to cover statutory reviews which are dealt with by judges of the Administrative Court: see CPR 54.21–27. Review applies not only to refusals but also to grants by the I.A.T. of permission to appeal, although in practice it seems that grants are only likely to be attacked where the defendant has been granted permission to appeal and the appellant believes that that grant was erroneous in law. I am bound to say that the circumstances in which such grants could be tainted must be exceedingly rare since it would have to be shown that the I.A.T. should not have regarded the appeal as arguable and so that appeal would have no real prospect of success: see CPR 54.25(5). The test to be applied by the Court in the more usual application in relation to a refusal by the I.A.T. of permissions is set out in CPR 54.25(4), which provides that the Court may only reverse the decision if satisfied that:-
“(a) the Tribunal may have made an error of law; and
(b) either
(i) the appeal would have a real prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard”.
If the Court reverses the I.A.T.'s decision, its decision operates as a grant of leave to appeal, which the Court may limit to specific grounds.
6. As will perhaps be apparent, statutory review has some advantages over judicial review. The other party is not heard and so there is no formal opposition to the application. This means that the exercise of the duty of candour is all the more important and, if it transpires that the Court was misled by a failure to disclose a material matter and so is persuaded to reverse the I.A.T.’s decision, I have no doubt that action, whether by way of contempt proceedings or imposition of costs or a report to the relevant disciplinary body, should and would be taken. Further, the test is whether the I.A.T. ‘may have made an error of law’. Judicial review will not succeed unless the Court is persuaded in due course that the I.A.T. has made an error of law. But there are disadvantages. There can be no oral renewal and there is no right to pursue the application to the Court of Appeal. Mr. Husain has pointed out that in a significant number of cases, refusal on the papers has been overturned on an oral renewal and that there are examples in the books of claims which have had to be taken to the Court of Appeal before permission has been granted and success ultimately achieved.
7. No system set up and operated by human beings can ever achieve perfection. Even the House of Lords, the “voices of infallibility” as they have been called, have recognised that they may err and sometimes that recognition has come very soon after the decision which has turned out to be wrong. The question must be whether the system which is in operation is sufficiently fair to enable it to be said that errors are unlikely to occur. The present system involves an appeal to an independent adjudicator who normally hears evidence and will reach his or her own conclusion based on the evidence which is put before him or her. There are now some 600 or more full or part time adjudicators and the large numbers of cases mean that they work under considerable pressure. Mistakes can be made and the fact that more than 25% of...
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