Admin Court rules on immigration court appeals
13 December 2009
R (on the application of Rex Cart) (2) U (3) XC (Claimants) v (1) Upper Tribunal (2) SIAC (Defendants) & (1) Secretary of State for Justice (2) Secretary of State for the Home Department (3) Public Law Project (Interested Parties) & (1) Child Maintenance and Enforcement Commission (2) Wendy Cart (Interveners) DC (Laws LJ, Owen J) 1 December 2009  EWHC 3052 (QB)
The supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to decisions of the Special Immigration Appeals Commission that were not amenable to any form of appeal. It did not, however, extend to decisions of the Upper Tribunal, unless it had acted beyond its statutory remit.
Read the judgment or click the “continue reading” link below to see a comprehensive summary and case comment by Rosalind English.
SUMMARY by Rosalind English
In joined proceedings brought by the claimants for judicial review of decisions of the first defendant Upper Tribunal (the Tribunal) and the second defendant Special Immigration Appeals Commission (SIAC), the court was required to determine as a preliminary issue whether or not the decisions of those bodies were susceptible to judicial review.
By virtue of the Tribunals, Courts and Enforcement Act 2007 s.3(5) and the Special Immigration Appeals Commission Act 1997 s.1(3) respectively, the tribunal and the commission were designated as superior courts of record. None of the decisions complained of were appealable decisions within the meaning of either Act. The issues were (i) whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to those decisions of the tribunal that were not amenable to any form of appeal; and (ii) the decisions to revoke bail in respect of one of the claimants and to refuse bail to the other violated the claimants’ rights guaranteed by ECHR Article 5(4). and the tribunal submitted that a superior court of record was, ipso facto, immune from the judicial review jurisdiction. In the alternative they submitted that judicial review was available only in rare and exceptional cases, which did not include those before the court.
Applications granted in part
Neither the 2007 Act nor the 1997 Act could be construed as excluding the judicial review jurisdiction from either SIAC or the tribunal. The rule of law required that statute be mediated by an authoritative judicial source independent of the legislature, the executive and the public body by which the statute was administered. That role could only be fulfilled by a court and the paradigm was the High Court. Judicial review was the principle engine of the rule of law, and were it to be excluded the tribunal and SIAC would be the last judges of the law they had to apply and would not be required to respect any other interpretation than their own. The term ‘superior court of jurisdiction’ did not of itself define which courts were susceptible to judicial review and which were not. The overriding foundation for the exercise of judicial review by the High Court was an excess of jurisdiction by the subject court, and it was courts whose jurisdiction was limited which were amenable to judicial review (Racal Communications Ltd, Re (1981) AC 374 HL and R v Cripps Ex p Muldoon (1984) QB 68 QBD).
The challenge to SIAC’s bail decision under the Convention was successful. In terms of the common law, SIAC could not be considered to be the alter ego of the High Court and was in principle judicially reviewable for excesses of jurisdiction both in terms of transgressing beyond the boundaries of its permitted subject-matter and in terms of making an error of law within those boundaries. However judicial review could not be deployed to challenge SIAC’s appealable decisions. In respect of bail, judicial review could not be used as a surrogate means of appeal where the statute had not provided for any appeal. Attempts to condemn the refusal of bail as being Wednesbury unreasonable would be doomed to failure and a sharp-edged error of law would have to be shown. The Article 5(4) argument did disclose such an error of law. Underlying Article.5(4) was an obligation to provide the suspect with sufficient information about the case against him that he might give instructions to the special advocate. Taking into consideration the cases of A v United Kingdom (3455/05) (2009) 49 EHRR 29 ECHR (Grand Chamber) and Secretary of State for the Home Department v F (2009) UKHL 28, (2009) 3 WLR 74, the claimants’ arguments on this point were upheld.
The position at common law with respect to the tribunal was, however, different. The tribunal was an authoritative, impartial and independent judicial source for the interpretation and application of statutory texts and was, for the relevant purposes, an alter ego of the High Court. It was a court possessing the final power to interpret for itself the law that it had to apply and it was not amenable to judicial review in respect of errors of law that it made within the boundaries of its permitted subject-matter. The High Court could only correct it if it embarked on a case that was frankly beyond the extent of its statutory remit or where there had been a whiolly exceptional collapse of fair procedure. The claimant’s application for judicial review in respect of the tribunal could not, therefore, be granted.
COMMENT by Rosalind English (December 2009)
The judgment given by Laws LJ gathers together all the learning, judicial and academic, on the question of liability or immunity of decision-making bodies to judicial review. The last time this exercise was undertaken with such thoroughness was in the now outdated but seminal authority of Anisminic v Foreign Compensation Commission  2 AC 147 which abolished (for most purposes) the distinction between errors of law within and without jurisdiction, ushering in the modern constitutional rule that any error of law by a public decision-maker is beyond his jurisdiction.
Laws LJ’s position is summed up in one sentence:
“The court’s [and his Lordship’s] ingrained reluctance to countenance the statutory exclusion of judicial review has its genesis in the fact that judicial review is a principal engine of the rule of law.”
In a detailed historical survey of the authorities, he shows that the learning discloses a “litany” of failed attempts to exclude judicial review, particularly where such exclusion was said to arise by statutory implication. Such was the case in these joined applications; the defendants contended that judicial review was excluded by ss.1(3) and 3(5) of the 2007 Act. This, in Laws LJ’s opinion, was “a constitutional solecism.” The supervisory jurisdiction (to the extent that it can be ousted at all) could only be ousted “by the most clear and explicit words”: see per Denning LJ in R v Medical Appeal Tribunal ex p. Gilmore  1 QB 574, 583.
Further on in the judgment, he comments that if the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen.
If judicial review were to be excluded by the formula advanced by the defendants, and the decision making bodies so immunized, this would mean that they would (in matters not subject to statutory appeal) be the last judges of the law they have to apply. They would not be required to respect any other interpretation but their own. Laws LJ drives home the implication of such immunity:
“The sense of the rule of law with which we are concerned rests in this principle, that statute law has to be mediated by an authoritative judicial source, independent both of the legislature which made the statute, the executive government which (in the usual case) procured its making, and the public body by which the statute is administered. There are of course cases where a decision-making body is the last judge of the law it has to apply. But such bodies are always courts. The prime example is the High Court, which is also the paradigm of such an authoritative source of statutory interpretation.”
As it turns out, he did decide that the tribunal was in the same category. He uses a shorthand term with which to wrap up these difficult questions of identity of these various courts: the question of “alter ego”:
“In my view the issue to be decided for SIAC and the Tribunal alike is the Muldoon question: should either institution properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate? Put another way…, does either body constitute in effect an alter ego of the High Court? There has to be an impartial authoritative judicial source of statutory interpretation, independent both of the legislature and of the persons affected by the application in practice of the relevant texts. Such a source is either the High Court or its alter ego.” (para 77)
SIAC is a court of very limited jurisdiction and therefore could not be such an “alter ego”; the fact that it is chaired by a High Court judge is nothing to the point and it is accordingly subject to judicial review for excess of jurisdiction. The Tribunal, on the other hand, is, for relevant purposes, an alter ego of the High Court. It therefore satisfies the material principle of the rule of law: it constitutes an authoritative, impartial and independent judicial source for the interpretation and application of the relevant statutory texts. It is not amenable to judicial review for excess of jurisdiction in the second sense: the case where, albeit acting within the field ascribed to it, the court perpetrates a legal mistake. It is a court possessing the final power to interpret for itself the law it must apply.