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Proposed Judicial Review Reform and Immigration Law

In July 2020, the Government launched the Independent Review of Administrative Law (“IRAL”), a panel of experts with the task of considering “whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.” The Government’s pre-existing view on this matter is not difficult to deduce given the contents of its manifesto in relation to judicial review, by way of implementation of which this Report was commissioned.

The Panel’s Report was submitted to the relevant ministers in January 2021 and it was made public in March 2021. The Government’s response to the Report was presented to Parliament by the Lord Chancellor and was made public in March 2021. The response includes a consultation launched on 18 March 2021 to address the recommendations of the IRAL Report and further proposed measures, which the Government considers were informed by the Panel’s analysis. 

Whilst, of course, this will have wide-reaching consequences to the judicial review of executive actions in general, the IRAL Panel itself acknowledged it is well-known that immigration cases are responsible for 90% of judicial review applications, of which they were unable to undertake an in-depth study. It is important, therefore, to consider how the Report’s recommendations, as well as the Government’s further proposals, would affect the field of immigration law in particular. 

Two significant, and concerning, proposed reforms will be addressed:

  1. The removal of Cart JRs;
  2. The introduction of suspended quashing orders, as well as prospective remedies and legislation to amend the doctrine of nullity.

“Cart” Judicial Review

The Panel considered that Parliament ought to intervene to reverse the Supreme Court’s judgment in R (Cart) v The Upper Tribunal [2012] 1 AC 663. As a consequence, the refusal of the Upper Tribunal to grant permission to appeal against a decision of the First-tier Tribunal could not be judicially reviewed and, if affected by an error of law, quashed. Whilst this applies to decisions of all chambers of the Upper Tribunal, the Panel’s data showed that the majority of Cart JT applications were made in the context of immigration law.

In its recommendation, the Panel considered Lord Phillips’ words, in paragraph 92 of the Cart judgment, namely that there is a “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.”

The Panel proceeded to test the effectiveness of Cart JRs in achieving this goal. In doing so, they considered reports and transcripts of cases involving Cart JRs since the Supreme Court’s judgment. They considered those which had a positive and negative result (the latter including successful Cart JRs, but where the UT subsequently found there was no error of law), against the total number of annual applications from 2012 to 2019.

The total number of applications was 5,502; the total number of reports or transcripts was 45; and the number of positive results were 12. The conclusion drawn by the Panel was that only 0.22% of all applications for a Cart JR since 2012 have had a positive result. On that premise, it was concluded that “the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued.”

It is not difficult to see the fault in this approach. The Panel contrasted data involving the total number of applications against the decisions that were reported. However, only a minority of UT decisions (of those relating to statutory appeals, which are relevant here) are reported.

The Upper Tribunal Guidance Note 2011 No 2, Reporting Decisions of the Upper Tribunal Immigration and Asylum Chamber provides that a decision will be reported where the Reporting Committee considers that it has general significance and utility in the development of the UT’s law, is sufficiently well reasoned and is consistent with binding statutory provisions or precedent of the senior courts.

Whilst the criteria for reporting a case and the grounds for giving permission to proceed with a Cart JR may both involve important points of principle/practice, or a compelling reason, each ought to be considered within the relevant context. The assessment by the Administrative Court of whether a case should be heard or granted permission cannot be identical to the Reporting Committee’s assessment of whether a decision should be reported, despite any overlap in criteria, in view of the different aims and interests involved. As a result, the number of reported cases is only a fraction of all cases involving Cart JRs and, by extension, the Report’s figures are not reflective of the actual position. 

Importance of independent judicial scrutiny in principle, regardless of practical efficacy

Importantly, even if the Cart JR system were practically inefficacious, as the Panel considers and the Government accepts, that is no good reason to legislate to reverse it. As Lady Hale held in paragraph 51 of the Cart judgment: 

“The real question, as all agree, is what level of independent scrutiny outside the tribunal structure is required by the rule of law. The mere fact that something has been taken for granted without causing practical problems in the social security context until now does not mean that it should be taken for granted forever. Equally the fact that the courts have hitherto found it difficult to deter repeated or unmeritorious applications in immigration and asylum cases does not mean that such applications should become virtually impossible. There must be a principled but proportionate approach.”

Even if the availability of independent scrutiny of the tribunal system by way of judicial review in the Administrative Court did result in unmeritorious applications, that is not sufficient to abolish it or doubt its value. As Lady Hale’s words suggest, whether or not such scrutiny is required in practice is not determinative. It is required in principle, as it provides an added layer of independent checks, which is important for the continued quality of judicial decision-making and the safeguarding of individual rights. Essentially, how well a system may work at any given time does not negate the inherent need for or importance of such checks and balances. This cannot and ought not be examined through data.

Notwithstanding the above, the Government has considered that “continued use of Cart Judicial Reviews is unjustified”, although the removal of that avenue “may cause some injustice” to a “few cases”.

Suspended quashing orders – prospective remedies and amending the doctrine of nullity

The Panel further concluded that Parliament ought to introduce a remedy of suspended quashing orders, orders that will only take effect after a certain period of time if certain conditions are not met, e.g. if Parliament did not legislate to ratify the as-of-yet unlawful exercise of public power, or if the executive did not take remedial action.

The Government agreed with that recommendation and went further to consider prospective-only judicial review remedies, i.e. remedies that would not invalidate the past exercise of power, even if it was found to be unlawful.

Both of these proposals, as well as an additional and direct proposal to that effect, show an intention to amend the position established by the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, namely  that an exercise of public power that has been established to have been unlawful (by the courts, before which it is presumed to have been lawful) was always null and void. Therefore, suspended quashing orders, prospective remedies and legislation providing for unlawful exercises of public power to not always have been null and void, depending on the public law error involved, all relate to each other. 

The potential consequences of those proposals can be envisaged in the field of immigration law. For instance, currently, an unlawful decision that has brought leave extended by section 3C of the Immigration Act 1971 to an end, upon being quashed by the UT, is considered to have always been null and void. As a result, “s.3C leave” never came to an end. This has now been accepted by the Secretary of State and is included in her s.3C guidance to caseworkers, as explored in my previous article. In the event the unlawful decision is found to have been valid at the point of its making, or if its quashing is suspended or prospective, s.3C leave would have come to an end and the continuity of lawful residence would have broken, resulting in significant consequences for the person involved.

Another situation that comes to mind is that of putative service of notices of decisions refusing or curtailing leave to enter or remain. Under these proposals, it would be possible for such notices, albeit not lawfully served, to have retrospective legal effect, despite being subsequently quashed or declared unlawful.

The extent of the effect of these proposals in the area of immigration can also be demonstrated by the number of policies issued by the Secretary of State for the Home Department in this area, which are found to be unlawful on judicial review, but not before they have affected a large number of individuals. The Detained Fast Track Scheme and the Removal Window policy are only a couple of examples of such policies.

Broadly, however, by allowing the executive’s unlawful acts to have legal effect, even if only for a limited time, and by restricting the administrative and financial consequences of unlawful decision-making, not only would the rights of individuals be seriously affected, but also the incentive for the executive to act lawfully would be greatly limited. 

The Government gave a six-week consultation deadline on its proposals; a manifestly short timeframe given the number of queries and and the significance of the proposals. The consultation closes on 29 April 2021.

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