The flexible nature of judicial review
In Keyu & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor  UKSC 69,  3 WLR 1665, Supreme Court was invited to reconsider the basis on which the courts review decisions of the executive, and in particular that the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality. That invitation was declined on the basis that it would be inappropriate for a five-Justice panel of the court to decide the argument, given that it potentially has implications which are profound in constitutional terms and very wide in applicable scope. What was offered was that the answer to the question whether the court should approach a challenged decision by reference to proportionality rather than rationality may depend on the nature of the issue.
Commenting upon recent decisions, the Supreme Court observed that domestic law may already have been moving away from the irrationality test in some cases. A flexible approach to principles of judicial review, particularly where important rights are at stake, had been endorsed by the Supreme Court in Kennedy v Charity Commission  UKSC 20,  2 WLR 808 at [51-55], where Lord Mance said this:
“The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. … The nature of judicial review in every case depends on the context.”
In the context of the deprivation of citizenship, this was held to apply with even greater force: Pham v SSHD  UKSC 19 at .
This has prompted the President of the Upper Tribunal (IAC) to observe that there is clearly scope for further development and refinement in the role of the court, or tribunal, in cases involving the proportionality of an interference with a Convention right: R (SA) v Secretary of State for the Home Department (Human Rights Challenges: Correct Approach) IJR  UKUT 536 (IAC) at ; and most recently in Abdul (section 55 – Article 24(3) Charter)  UKUT 00106 (IAC) at .
Flexibility of approach to the intensity of scrutiny and the weight to be given to any primary decision maker’s review, both in judicial review and on appeal in the immigration law, is not new. For example, in R v SSHD, ex party Onibiyo  EWCA Civ 1338,  QB 68, the role of the court in the immigration field was held to vary, depending on the legislative and administrative context. The strong emphasis on context in R v SSHD, ex parte Doody  1 AC 531, at , prompted the Tribunal in Miah (interviewer’s comments: disclosure: fairness)  UKUT 515 (IAC), to recall the memorable and pithy formulation of Lord Steyn in R (Daly) v SSHD  2 AC 532, at : “In law context is everything.”
But we have recently been reminded of an interesting comparison made between a judicial statement about the flexibility that applies to the standard of evidence necessary to discharge the single civil standard of proof; and the flexibility that applies in the application of the test for granting permission to apply for judicial review.
In Wasif v SSHD  EWCA Civ 82, the Court of Appeal, when discussing the permission requirement applying to applications for judicial review in the High Court and the Upper Tribunal, after observing that neither rule 54 nor section 16 of the Tribunals Courts and Enforcement Act 2007 defines the criteria by which the decision whether to grant permission should be granted, said this:
“But it is now generally accepted that the touchstone is whether the application is “arguable” or has “a realistic prospect of success”: the cases are legion, but the locus classicus is the judgment of Lord Bingham and Lord Walker in Sharma v Brown-Antoine,  UKPC 57,  1 WLR 780, at para. 14 (4) (p. 787E).”
In Sharma, Lord Bingham and Lord Walker highlighted the flexibility of the test in its application and made the comparison noted above:
‘(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region)  EWCA Civ 1605,  QB 468, para 62, in a passage applicable mutatis mutandis to arguability:
“… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.” ‘
That concise expression by Richards LJ in R (N) at , was, as Richards LJ himself points out in R (Giri) v SSHD  EWCA Civ 784 at ; subsequently approved by the House of Lords in In re D  UKHL 33,  1 WLR 1499, per Lord Carswell, and remains good law in relation to the standard of proof required to establish an objective precedent fact, upon which the exercise of the statutory or administrative power depends. As Wasif reminds us, it is the same flexibility of application that applies to the standard of arguability for permission to apply for judicial review.
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