R (M and G) v Immigration Appeal Tribunal and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1731 |
| Docket Number | Case No: C1/2004/0783 & C1/2004/0792 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2004 |
[2004] EWCA Civ 1731
Lord Phillips of Worth Matravers, Mr
Lord Justice Sedley and
Lord Justice Scott Baker
Case No: C1/2004/0783 & C1/2004/0792
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Collins)
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fordham (instructed by Refugee Legal Centre) for the Appellant M
Raza Husain (instructed by TRP Solicitors) for the Appellant G
Elisabeth Laing (instructed by the Treasury Solicitor) for the Second Respondent
Lord Phillips, MR:
This is the judgment of the court.
Introduction
These are conjoined appeals from a judgment of Collins J dated 25 March 2004 [2004] EWHC 588. They raise the question of whether the Administrative Court should exercise its powers of judicial review in circumstances where Parliament has provided an alternative remedy, but one that does not involve a right to an oral hearing. The context is the complex regime that is currently in force under the Nationality, Immigration and Asylum Act 2002 ('the Act') for those who wish to appeal against immigration decisions.
Section 82 of the Act gives a right of appeal to an adjudicator against an immigration decision. Section 83 gives a similar right to appeal against a rejection of an asylum claim by an applicant who has been granted leave to enter or remain in the United Kingdom for a period exceeding one year. Section 101 provides:
"(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 Tribunal's decision on the ground that the Tribunal made an error of 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 the Civil Procedure Rules).
(4) The Lord Chancellor may by order repeal subsections (2) and (3) ."
CPR 54.21–27 sets out the Rules that apply to statutory review under section 101. CPR 54.25(4) provides that the court may only reverse a decision of the IAT refusing permission to appeal 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 IAT's decision, its decision operates as the grant of permission to appeal. The court's decision is final and there is no appeal from it nor a right to renew the application.
G and M are asylum applicants. G comes from Iran and M from Zimbabwe. Each had his application for asylum dismissed by the Secretary of State. Each appealed to an adjudicator and had his appeal dismissed. Each applied to the Immigration Appeal Tribunal ('IAT') for permission to appeal, pursuant to section 101 (1) of the Act. Each was refused permission by the IAT.
On 18 November 2003 G applied to the Administrative Court for a review of the IAT's decision, pursuant to section 101 (2) of the Act ('statutory review') . On 26 November 2003 Goldring J dismissed the application for statutory review, affirming the decision of the IAT. On 9 January 2004 G applied for permission to seek judicial review of the IAT's refusal of permission, relying on the same grounds that he had unsuccessfully advanced in his claim for statutory review. On 23 February 2004 Collins J granted him permission to proceed with his claim for judicial review.
M adopted a different approach. On 25 February 2004 he made a simultaneous application to the Administrative Court (i) for statutory review of the IAT's refusal to grant him permission to appeal and (ii) for permission to seek judicial review of the IAT's decision. The same grounds were relied on for each limb of the application. On 2 March 2004 Collins J dismissed M's application for statutory review and refused him permission to seek judicial review, affirming the decision of the IAT. However, following an oral renewal of the application for permission to seek judicial review, Collins J granted permission, so that both G and M could be considered on the same footing.
Collins J's decision
Before Collins J the Secretary of State contended that the effect of section 101 of the Act was to remove the court's jurisdiction judicially to review the IAT's decision, replacing this with statutory review. Collins J rejected that contention and the Secretary of State now accepts that he was right to do so. The Secretary of State's alternative submission was that it was an abuse of process for G and M to pursue claims for judicial review when statutory review was available as an alternative remedy. Collins J agreed, and dismissed M and G's applications on this basis, without considering the merits of their claims.
Collins J started his judgment by explaining the reason why Parliament had introduced the special regime enacted in section 101 of the Act. The object was to provide a much faster procedure than that which was involved when asylum applicants sought to challenge a refusal of permission to appeal to the IAT by seeking judicial review. A paper application for judicial review can, if refused, be renewed orally. If then refused, the applicant can seek permission to appeal to the Court of Appeal, first in writing and then, if refused, orally. The process can take many months before final determination. Some asylum seekers whose claims had no merit were buying time by pursuing hopeless applications for permission to seek judicial review.
Collins J's conclusions appear from the following paragraphs of his judgment:
"11. … It seems to me that where Parliament has introduced a new procedure to deal with a particular problem which it perceives to exist, the court should hesitate long before considering that procedure to be less satisfactory. Parliament was aware of the existence of judicial review and quite clearly intended, as I have said, that statutory review should take its place. It clearly regarded the new procedure as satisfactory. In the light of the two tier appeal system which exists, it was in my view entitled so to regard it. It is proportionate to recognise the need for consideration by a High Court judge but, because of the very real problems created by delay and the pursuit of unmeritorious claims, to limit that consideration in the way which s.101 and CPR 54 has ordained
20. It is an abuse of process for a claim for judicial review to be pursued (after a statutory review has failed) on grounds which were or could have been relied on in the statutory review claim. The decision of a High Court judge cannot be judicially reviewed and this is an attempt to get around that prohibition. The claimants maintain that the court's discretion should not be exercised so that an ouster is established in fact if not in law. However, it would clearly be contrary to Parliament's purpose in enacting s.101 to permit judicial review unless there are exceptional circumstances and by no stretch of the imagination can a claim based on grounds which were or could have been raised in the statutory review be regarded as one to which exceptional circumstances apply. I recognise that it is dangerous to say 'never', but the above permits me to do so. Otherwise where new material comes to light the circumstances will have to be considered, but it is difficult to envisage any situation which would make judicial review appropriate short, perhaps, of evidence of fraud or bias or similar matters."
In reaching these conclusions Collins J dismissed a contention that he was breaching Articles 6 and 14 of the European Convention on Human Rights.
G and M's submissions
Mr Michael Fordham appeared on behalf of M. We would wish to record our gratitude for the assistance that his industry and his lucid submissions afforded us and our recognition of the fact that this assistance was provided 'pro bono'. He drew attention to the fact that no suggestion had been, or could be, made that either of the appeals before us were instances of asylum seekers attempting to abuse the judicial process in order to buy time. He submitted that it was quite wrong that those who were acting in good faith should be prejudiced because of problems created by those who were not. He identified as the prejudice in question first that statutory review involved no right to an oral hearing and second that it carried no right, in the event of refusal, to appeal to the Court of Appeal. He submitted that it was unjust that asylum seekers should be restricted to a remedy that had these procedural shortcomings when what was at stake might, literally, be a matter of life and death.
Mr Raza Husain, who appeared for G, adopted Mr Fordham's submissions and added one of his own. He submitted that immigration...
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