By Alan Oakley
Changes to the justice system will come into force this summer which will limit the right to challenge decisions made by the UK immigration authorities.
Justice Secretary Chris Grayling announced the measures which will bar some people from bringing ‘judicial review’ against immigration decisions and increase the costs of doing so. Mr Grayling claims that immigration solicitors have been using Judicial Review as ‘a cheap delaying tactic’ and he is therefore determined to limit its use. 77 per cent of Judicial Reviews are brought in immigration cases.
Judicial Review is a legal proceeding whereby someone who believes that a public body (such as the Home Office) has made an unlawful or incorrect decision can apply to the UK’s High Court for a ruling that the decision was wrong in law. The court can order the public body to reconsider its decision and to pay damages.
Mr Grayling and officials at the UK’s Ministry of Justice (MoJ) are concerned that the number of Judicial Review applications has been rising in recent years. There were 6,692 applications in 2007 and 11,359 in 2011. Of those made in 2011, 8,734 were against immigration decisions.
Mr Grayling says that immigration solicitors have been using Judicial Review to delay deportation of their clients even when they have no realistic chance of success. He points to the low success rate in Judicial Reviews to support his case: Of the 8,734 judicial reviews of immigration decisions brought in 2011, only 31 (0.35 per cent) were ultimately successful. He says that solicitors apply anyway because, even where an application for Judicial Review is ultimately unsuccessful, it can hold up a deportation considerably.
This is because of the way the Judicial Review procedure works. Before a Judicial Review can be brought, the solicitor must first apply for permission to judicially review a decision. A single judge will consider an application for permission by reading the papers presented by the applicant’s solicitor. He will decide whether the papers disclose an arguable case. If they do, then the judge will grant permission to the applicant to apply for Judicial Review. If they do not, he will refuse permission.
In 2011, of the 8,734 applications for permission made, only 607 (7 per cent) were granted leave to apply for Judicial Review. It took an average 83 days (nearly three months) for each unsuccessful application for permission to be dealt with. Where the judge granted leave to apply for Judicial Review, it took 275 days (nine months) for the review to be completed. Only 31 (5 per cent) of those 607 decisions were found to have been unlawful.
In order to limit the number of applications Mr Grayling has proposed the following changes
• A new £215 fee to be paid by applicants who wish to appear before a judge to argue their case after being refused permission to apply for Judicial Review
• Barring people from applying for a hearing in person where their case is found to be ‘totally without merit’ by the judge
Mr Grayling said ‘Judicial Review should be used by people who have carefully considered whether they have proper grounds to challenge a decision. We are changing the system so it cannot be used anymore as a cheap delaying tactic’.
However, the opposition justice spokesman Sadiq Khan has condemned the changes. He said they would result in more ‘unlawful decisions going unchecked’. Mr Khan said: “The prime minister claims that judicial review is stifling economic growth. This is nonsense. The lack of economic growth is due to the government’s economic policies not due to unlawful decisions being challenged.
“No government is above the law. It is essential that where a government or other public body has acted unlawfully a judge can hold them to account. That’s why ministers need to guarantee that these proposals will not insulate government decisions from legal challenge or remove this crucial check and balance on their power.
“Recent history has shown the importance of Judicial Reviews in exposing shoddy and unlawful government decision-making – whether it be the disastrous west coast mainline franchising or the botched cancelling of Building Schools for the Future. Making challenges more difficult will result in an increased number of unlawful decisions going unchecked and local charities, residents associations and communities groups will be squeezed out, leaving only the well-resourced, powerful organisations able to bring Judicial Reviews.”
A spokesperson for the Immigration Law Practitioners Association said that there has been insufficient consultation and said that that the figures were misleading as in many cases where a Judicial Review application is made, a settlement is reached before the matter comes to court. This suggested that ‘far from being unmeritorious, or deliberate ‘delaying’ tactics, the claims were properly and responsibly brought and conducted, and that the parties managed to achieve a resolution of the claim without using further court time and resources.’
The Ministry of Justice backed down on two other proposed changes following objections from judges and others. It had wanted to impose time limits for appeals in ongoing cases where it would be difficult to work out when the clock might start running. It also decided not to prevent Judicial Reviews being taken when cases had already been subject to an earlier judicial decision.
