A Bill that is going through Parliament - the Judicial Review Bill - would limit access to justice for our clients, whose lives can be put at risk by unlawful decisions on their asylum and immigration claims. These decisions need to be challenged by scrutiny from a judge - but this Bill would make that impossible. 

The Judicial Review Bill will be debated by MPs on 18 October 2021. Our briefing explains our opposition to the Bill, and urges MPs to defend access to justice by rejecting the Bill. 

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Background

The Judicial Review and Courts Bill, which receives its Second Reading on 18 October 2021, proposes a range of judicial reforms. The Bill risks weakening the rule of law and narrowing access to justice for vulnerable people. This briefing covers the impact of Part 1 Clause 2 of the Bill, which removes access to Cart Judicial Review. Submissions regarding other aspects of the Bill have been made by Liberty, Public Law Project, Inquest, and others.

The purpose of Judicial Review is to ensure that public bodies make lawful decisions. The provisions in this Bill would do nothing to improve the quality of decision-making, for example by ensuring access to high quality legal representation from an early stage in proceedings or improving guidance. Instead of reducing need, the Bill simply removes access to Cart Judicial Review, which allows individuals to challenge decisions to refuse them a right of appeal where they are made unlawfully. This narrows access to justice and means that people who are subject to unlawful decisions have less opportunity for redress. Cart Judicial Review is a vital remedy of last resort for people subject to unlawful decision-making, and JCWI urges parliamentarians to defend it.

The Bill should also be understood as part of the Government’s wider programme of constitutional reform. The true impacts of the Bill can be better understood in the context of the ongoing review of the Human Rights Act and the planned review of the Constitutional Reform Act, as well as other Bills currently before Parliament dealing with electoral reform, policing, and borders. Taken together, these would grant unprecedented power to the executive, reduce accountability and, ultimately, tip the balance of power in favour of the executive over Parliament, the courts, and the public.

The need for Judicial Review could be reduced by introducing measures that would increase the quality of decision-making by public bodies in the first place, through better resourcing the courts and the Legal Aid sector. This Bill represents a misdirected attack on access to justice instead of taking steps to improve outcomes before they reach the point of needing to rely on Judicial Review. It will not solve any of the problems in our justice system and may instead deny vulnerable members of our society the legal protection they need.


Clause 2 – Cart Judicial Review

Clause 2 amends the Tribunals, Courts and Enforcement Act 2007 to exclude Cart Judicial Review from the scope of Judicial Review. JCWI recommends that Clause 2 be removed from the Bill, as it removes an essential safeguard on the basis of discredited evidence, to no clear benefit.

Cart Judicial Review allows individuals to challenge a decision of the Upper Tribunal, where the First Tier and Upper Tribunal has refused the claimant permission to challenge a First Tier Tribunal decision. Cart Judicial Review is used in cases where no other right to appeal exists. This type of JR is usually used in asylum and human rights cases, in which stakes are extremely high. In many cases, these are life-or-death decisions. It is unacceptable to insulate such decisions from judicial scrutiny.

Nadeem’s Story

Nadeem is a young Afghan man who came to the UK as an unaccompanied minor and was in the care of Social Services. He was tortured by the Taliban as a child.

His case was dismissed because even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul.

His brother, who had come under the same circumstances, had that medical report, and his appeal was allowed.

The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to JCWI. JCWI used Cart Judicial Review to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational.

He has just been recognised as a refugee and is starting to rebuild his life in the UK with his brother, safe from the Taliban.

There is already a high threshold for the use of Cart Judicial Reviews. In order for permission to be granted, the case must be shown to be arguable with a reasonable prospect of success. Lawyers must also show that there is an important point of principle under consideration, or another compelling reason for the appeal to be heard. Applications for Cart Judicial Review of a decision must be submitted within 16 days of that initial decision being sent, instead of the usual three months available in other types of Judicial Review. Unlike with other Judicial Reviews, there is no right to an oral hearing: Cart Judicial Reviews are dealt with by paper application only, thus requiring minimal judicial resources.

The recommendation to reverse Cart Judicial Review, put forward by the Independent Review of Administrative Law (IRAL), was based on statistics that the government has since accepted were incorrect. The IRAL report originally claimed that only 0.22% of Cart JRs are successful. The  government now accepts that success rates are 15 times higher, at 3.4%. However, this figure is also not universally accepted, with the Public Law Project estimating that success rates for Cart JRs are at least 5.7%. Other constitutional lawyers have assessed that success rates for Cart JRs could be even higher, at 6.3% or 7.6%. The statistical variations stem from the IRAL's misunderstanding of how to calculate success in Cart JRs, as well as procedural complexities which mean that Cart JRs are rarely reported accurately.[1]

There is clearly some difficulty in establishing the success rates of Cart Judicial Reviews. However, it is JCWI’s opinion that there are other, more important ways to gauge their value. In JCWI’s experience, the availability of Judicial Review in and of itself helps to ensure effective decision-making. Knowing that decisions are subject to independent judicial scrutiny is integral to ensuring good quality decision-making. Allowing any actor free reign to exercise a power without the possibility of scrutiny is alien to the democratic principles under which we are governed.

More important than the precise success rates of Cart JRs are the nature of those successful cases. As mentioned above, cases in which a wrongful decision by the Upper Tribunal is overturned by way of Cart Judicial Review are ones with extremely grave consequences, and ones in which Cart JR was the only available legal remedy for claimants. Below are a number of cases in which JCWI used Cart Judicial Review as a last resort to safeguard the human rights of refugees, and victims of trafficking, who had been placed at risk of return to danger by unlawful decisions of the Tribunal.

Tania’s Story

Tania was a child victim of trafficking. Her asylum appeal was dismissed by the First-Tier Tribunal, which found that she was not trafficked and would not be at risk on return. The reasoning behind this conclusion was that she voluntarily came to this country to work with the family that had subjected her to forced labour.

Tania was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the Upper Tribunal was sought, since as a question of law she could not “voluntarily” undertake such work as a minor. As a victim of trafficking and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return.

Permission to appeal was refused by both the First Tier Tribunal and Upper Tribunal, but a Cart Judicial Review of this decision was successful, with the judge in the case finding that the Tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning.

The decision of the Upper Tribunal to refuse permission to appeal was quashed and permission to appeal to the Upper Tribunal was granted.

Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.

 

Jared’s Story

Jared is a Tamil who had supported the LTTE as a teenager and was tortured by the Sri Lankan state as a result.

His body was covered in over a hundred scars typical of torture methods used by the regime. Despite this, and a country expert report, his appeal was dismissed. Despite his trauma and the risk he faced on return, Jared was detained pending removal.

He lodged a Cart Judicial Review challenging how the Tribunal had treated the expert evidence supplied in his case.

The case was successful before the Court of Appeal and Jared was then recognised as a refugee. It was accepted by the court that he would have been at real risk of further torture and persecution if returned.

 

Michael’s Story

Michael has a serious and enduring mental health condition. He has been sectioned several times under the Mental Health Act and has been diagnosed with Bipolar Affective Disorder. The First-Tier Tribunal rejected his appeal against a decision to return him to Nigeria, despite finding that Michael:

-          Is vulnerable;

-          Requires ongoing support, and would be at significant risk of relapse if returned;

-          Would not be able to fund healthcare on return to Nigeria, and even if he could, would not be able to access it;

-          Does not have any material support in Nigeria;

Nevertheless, it was found that there were no very significant obstacles to his reintegration on return.

Permission to apply for Judicial Review was subsequently granted on the basis that the First Tier Tribunal failed to take into account Michael’s mental illness. The refusal was quashed, and Michael was granted permission to appeal to the Upper Tribunal, which found that the First Tier Tribunal judge had made a material error of law.


Conclusion

As these case studies and numerous others from JCWI’s experience illustrate, the people who benefit from the last-resort safety net of Cart Judicial Review are some of the most vulnerable in our society. They are children, survivors of torture and trafficking, mentally unwell and traumatised people who have been subjected to irrational and poorly reasoned decision-making. Cart Judicial Reviews, when they are used, are used because no other legal remedy is available. Further, their use is already limited by an unusually high threshold for eligibility.

Moreover, the recommendation to remove access to Cart Judicial Review is based on flawed figures that underestimate its success by a factor of at least 15, if not more. 

If the Government intends to reduce the number of Judicial Reviews, it is JCWI’s view that this should be achieved by improving the quality of decision-making in the first instance and widening access to quality legal representation at an early stage of proceedings. To instead remove Cart Judicial Review would simply do away with a key last legal resort for vulnerable claimants – JCWI therefore urges Parliamentarians to vote against this Bill at Second Reading, or otherwise to seek the removal of Clause 2 of the Bill during Committee Stage.

[1] For a fuller discussion of how success rates should be calculated see the Public Law Project’s April 2021 consultation submission.