Judicial review golden goose has narrow escape in Supreme Court

24 June 2011 by Rosalind English

R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here

Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.

This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal,  established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.

The cases

The appellants in the two English cases had failed in appeals to the social security and child support and the immigration and asylum chambers of the First-tier Tribunal respectively and had been refused permission to appeal to the Upper Tribunal by both the First-tier Tribunal and Upper Tribunal. Mr Cart’s claim for judicial review of the refusal of permission by the Upper Tribunal was dismissed by the Divisional Court . His appeal to the Court of Appeal was also dismissed. The Court of Appeal held that decisions of the Upper Tribunal were subject to judicial review only on the grounds of outright excess of jurisdiction or the denial of procedural justice.

MR, a native of Pakistan whose application for asylum was refused, also claimed judicial review of the Upper Tribunal’s decision. The High Court followed the approach of the Court of Appeal in dismissing his claim but granted a certificate for his appeal to be joined with Mr Cart’s. The issue to be determined was the scope for judicial review by the High Court of unappealable decisions of the Upper Tribunal.

The judgment 

The Supreme Court unanimously dismissed the appeals but on a different basis from that adopted in the Divisional Court and the Court of Appeal.

There was nothing in the  2007 Act which purported to oust or exclude judicial review of the unappealable decisions of the Upper Tribunal. No system of decision-making was infallible; there was always the possibility that a judge would get it wrong and there should always be the possibility that a more experienced judge could check for error.

The scope of judicial review was an artefact of the common law whose object was to maintain the rule of law; the question was what machinery was necessary and proportionate to keep errors of law to a minimum and, in particular, whether there should be any jurisdiction in which such errors were immune from scrutiny in the higher courts.

There were three possible approaches:

1. The scope of judicial review should be restricted to cases where there was an outright excess of jurisdiction and the denial of fundamental justice
2. Or there should be unrestricted judicial review for decisions of the tribunals set up under the 2007 Act; or
3. Judicial review should be limited to situations where an important point of principle or practice was raised or there was some other compelling reason for the case to be heard (see paras 27, 37-38 of judgment).

Option 1 was rejected as too narrow, leaving the possibility that serious errors of law affecting large numbers of people would go uncorrected.

The second approach failed to reflect the fact that the courts’ resources were not unlimited and the High Court and Court of Appeal had been overwhelmed with judicial review applications in immigration and asylum cases until the introduction of statutory reviews.

The third approach found most favour. The adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself.

The adoption of the second-tier appeals criteria would lead to a further check outside the tribunal system, while not being one which could be expected to succeed in the great majority of cases. That would recognise that the new tribunal structure deserved a more restrained approach to judicial review than before, while ensuring that important errors could be corrected.

Comment

This judgment is by no means an unmitigated victory as claimed by the intervening organisation  Justice. It by no means endorses their arguments for unrestricted court access. The  Supreme Court President Lord Philips observed that his initial inclination was to treat the  new two tier tribunal system as

wholly self-sufficient. It is under the presidency of a judge who is likely to be a member of the Court of Appeal, and High Court judges can and will sit in the Upper Tribunal

and he was only persuaded that there was some need for overall judicial supervision at least until the senior judiciary have built up more experience of how the two tier tribunal system works in practice (see para 92) – a far cry from saying that a fully fledged system of judicial review should be available to all, involving as it does  a four stage system of paper and oral applications first to the Administrative Court and then, by way of appeal, to the Court of Appeal.

The 2007 Act was designed to simplify and rationalise the proliferation of statutory tribunals which had been set up in the early decades of the welfare state  to determine claims between an individual and the executive – in Lady Hale’s highly elucidating summary their jurisdiction covered everything from “war pensions, social security benefits, immigration and asylum, provision for special educational needs,  detention in a psychiatric hospital,  licences or approvals to conduct certain kinds of business, taxation, to compensation for compulsory purchase”.

The diversity of jurisdictions in the old tribunal structure has now been absorbed into the First and Upper Tier Tribunal system, but there was nothing express in the 2007 that expressly excluded the possibility of judicial review of either of these tribunal’s decision, and the argument that the respondent ran in the Divisional Court hearing in Cart , that making the Upper Tribunal a superior court of record was sufficient to oust the supervisory jurisdiction of the HIgh Court in judicial review was “killed stone dead” by Laws LJ in the Divisional Court hearing and was not resurrected here.

On the other hand the Court was unanimous in the view that the rule of law did not require that Upper Tribunal be subject to review for error of law within its jurisdiction: it had the final power to interpret for itself the law it must apply. But in “the grossly improbable event” that  the Upper Tribunal were to embark upon a case which was clearly beyond its statutory remit  (Laws LJ’s words) there was no reason why the High Court should not correct it. And it might also intervene “where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal”.

That said, the consideration which weighed heavily with the Supreme Court was proportionality. Referring to the Court of Appeal’s reflections in Sivasubramaniam, they agreed that there must be  a limit to the resources

which the legal system can devote to the task of trying to get the decision right in any individual case. There must be a limit to the number of times a party can ask a judge to look at a question.

Statutory review for immigration and asylum cases was introduced for a reason. As Lady Hale pointed out,

It is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon the factual conclusions of the first instance judge

and applications for judicial review mushroomed until the 2002 statutory review procedure got things back under control. It showed that it is indeed  difficult to deter repeated or unmeritorious applications in these cases and it was Parliament’s intention that the two tier structure set up by the 2007 Act would provide a statutory right of appeal in relation to decisions of tribunals that would, in most cases, provide a satisfactory alternative to judicial review.

So it is worth reflecting that the inundation of applications for review of asylum decisions nearly killed the golden goose, until it was rescued by the restricted form of appeal introduced in 2002.  It is hardly surprising therefore that in the light of this experience,  the Supreme Court has concluded it was not necessary or proportionate for the maintaining of the rule of law to allow unrestricted judicial review of unappealable decisions of the Upper Tribunal.

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