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What is the difference between a case that is “totally without merit” and one that is “not arguable”? Are either of those more or less hopeless than a case that is “bound to fail”?
These are questions that only a lawyer would ask. But they are also ones that can determine whether a claimant for immigration status will have an opportunity to make his case in court, or be sent back to his purported persecutors on the papers alone. For that reason, they are questions that the Court of Appeal have addressed in Wasif and another v Secretary of State for the Home Department  EWCA Civ 82.
The background is the pressure on the courts and tribunals as a result of the increase in judicial review claims involving asylum and immigration matters, and the government’s response to it. Judicial review claims have long involved a filter system that requires a claimant to obtain the permission of the court for their case to be heard in full. This is done initially on the papers (i.e. without a hearing). The test has traditionally been thought to be whether the claim is “arguable” or whether it has “a realistic prospect of success”. If it is, proceed to a full hearing. If not, then what?
In the past, the answer was that all claimants could go before the courts to argue why permission should be granted. This stage, known as the renewal hearing, is generally a relatively short affair in which the claimant tries to address the perceived weaknesses in the case. In many cases, the refusal of permission is upheld (sometime in curt judicial tones). On occasions, however, the oral hearing reveals a meritorious point that was missed by the judge considering the papers, or was absent from them. Permission is granted and the judicial review will go on to be heard. In such cases the renewal hearing has served its function as the safety net, ensuring that a case that can and should be argued in court is kept alive.
The problem is the obvious one: the rise in judicial review and oral renewals has led to more and more court time being devoted to the least compelling cases. The solution, as of 2013, was to change the procedural rules to raise a new hurdle. Where a judge or tribunal has refused permission on the papers and considers the claim to be “totally without merit”, then the claimant will not get his or her oral renewal hearing. The claim will have failed*. (Those amendments are at CPR r. 54.12, para. 7 and Upper Tribunal Rules 2008, r.30.)
In theory, this looks like a common sense solution to a real problem. The Court in Wasif had no doubt that “the policy considerations underlying the 2013 rule-changes are as powerful as they ever were, if not more so.” But what does “totally without merit” mean? It clearly has to be more than “not arguable”, as otherwise whenever permission was refused the case would be marked as “totally without merit” and oral renewal hearings would become extinct. That was clearly not the intention of the amended rules, even if some in the Home Office and Ministry of Justice may have considered it a serendipitous outcome. In a previous case, R (Grace) v Secretary of State for the Home Department  EWCA Civ 1191, a differently constituted Court of Appeal rejected an argument that “totally without merit” should be reserved for cases “so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made.” Instead they held that it “means no more and no less than ‘bound to fail’”. Nonetheless the issue continued to give rise to difficulties, which resulted in the Court returning to the matter in Wasif. Underhill LJ, giving the judgment of a court that included the Master of the Rolls, sought to square the circle in the following way:
“In our view the key to the conundrum is to recognise that the conventional criterion for the grant of permission does not always in practice set quite as low a threshold as the language of “arguability” or “realistic prospect of success” might suggest. There are indeed cases in which the judge considering an application for permission to apply for judicial review can see no rational basis on which the claim could succeed: these are in our view the cases referred to in Grace as “bound to fail” (or “hopeless”). In such cases permission is of course refused. But there are also cases in which the claimant or applicant (we will henceforth say “claimant” for short) has identified a rational argument in support of his claim but where the judge is confident that, even taking the case at its highest, it is wrong. In such a case also it is in our view right to refuse permission; and in our experience this is the approach that most judges take. On this approach, even though the claim might be said to be “arguable” in one sense of the word, it ceases to be so, and the prospect of it succeeding ceases to be “realistic”, if the judge feels able confidently to reject the claimant’s arguments. The distinction between such cases and those which are “bound to fail” is not black-and-white, but we believe that it is nevertheless real; and it avoids the apparent anomaly [whereby all permission refusals would otherwise be marked “totally without merit”]”
All clear? Perhaps envisaging that it was not, the Court made some further observations (which were intended for use by the Upper Tribunal as well as the High Court).
- Judges should “certainly not” certify applications as “totally without merit” as an automatic consequence of refusing permission. The criteria are different.
- No judge should certify an application as “totally without merit” unless he or she is: “confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequence of his decision in the particular case.” (per Maurice Kay LJ in Grace)
- A case should only be certified where the judge is satisfied that a hearing could serve no purpose in allowing the claimant to address perceived weaknesses or omissions in the case.
- As a “thought-experiment” it may assist a judge to consider whether he or she can conceive of a judicial colleague taking a different view on the granting of permission. (The Court was careful, though, to stress that this was not a formal test – “the point of a renewal hearing is not that the claimant is entitled to another dip into the bran-tub of Administrative Court of Upper Tribunal judges in the hope of finding someone more sympathetic.”)
- Where a judge suspects that there may be an arguable claim, even if the point in question has not been pleaded properly or at all, then it should not be certified as “totally without merit”.
- A case should not be certified as “totally without merit” on the basis of a point raised in the summary grounds of defence to which the claimant may have an answer (given that at that stage the claimant would not have seen the summary grounds).
- Where a claim is certified as “totally without merit” then “peculiar care must be taken to ensure that all the arguments raised in the grounds are properly addressed” when the judge gives reasons for coming to his or her decision. Separate reasons should be given for the certification (as opposed to the refusal of permission), even if those separate reasons rest on what has been said previously. The reasoning need not be lengthy, but it should be structured.
- The Court expressed some doubt about the view expressed in previous authorities that the arguability of a claim can be affected by the nature and gravity of the issue. However, it was not called upon to decide this matter.
Helpful though this checklist may be, the Court acknowledged that it is “inescapable” that decisions on when a case was “totally without merit” were, in essence, matters for individual judges to assess in individual cases. And that is the rub: “totally without merit” will remain a label attached to those cases that judges think are particularly hopeless. The discussion of semantics in Wasif and Grace disguise the difficulty in expressing in law what is and will remain a more general judgment-call. The Court presumably had this in mind when stressing the importance of giving reasons specifically for the “totally without merit” certification.
Readers who have made it this far may be wondering how it is that two cases that were certified as being “totally without merit” on the papers ended up being discussed at an oral hearing in the Court of Appeal. One of the appellants themselves was not wholly clear on this point either, requiring the judicial deus ex machina to ensure the case was heard. The Court found that a “totally without merit” certification is not itself appealable as such. Instead, a claimant has to challenge the refusal to grant permission to apply for judicial review. To do so, they must of course first seek permission to appeal. Where permission for judicial review has been refused and the case certified as “totally without merit”, then the application for permission to appeal will be determined on the papers without an oral hearing (CPR r.15 and r. 52.15A). The Court in Wasif wrinkled the judicial brow at this state of affairs: “It is surprising, and sometimes inconvenient, that the hands of a judge of this Court should be tied in this way by a decision taken at first instance.”
This explains the asterisk earlier in this blog post. For when an application for permission for judicial review is refused, and is certified as “totally without merit”, the end of the road has not quite been reached. Permission may still be sought to appeal the decision to refuse permission. But as the case is “totally without merit”, as opposed to being “not arguable”, permission to appeal the decision to refuse permission on the papers will itself only be considered on the papers. Were permission to be granted, there would then be an oral hearing in the Court of Appeal about the failure of the High Court to allow an oral hearing. Welcome to the world of the judicial review in immigration law.