M, R (on the application of) v Immigration Appeal Tribunal & Anor

These are conjoined appeals from a judgment of Collins J dated 25 March 2004 [2004] EWHC 588. They raise the question of whether the Administrative Court should exercise its powers of judicial review in circumstances where Parliament has provided an alternative remedy, but one that does not involve a right to an oral hearing. The context is the complex regime that is currently in force under the Nationality, Immigration and Asylum Act 2002 (‘the Act’) for those who wish to appeal against immigration decisions.

Section 82 of the Act gives a right of appeal to an adjudicator against an immigration decision. Section 83 gives a similar right to appeal against a rejection of an asylum claim by an applicant who has been granted leave to enter or remain in the United Kingdom for a period exceeding one year. Section 101 provides:

“(1)

A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.

(2)

A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal’s decision on the ground that the Tribunal made an error of law.

(3)

Where an application is made under subsection (2) –

(a)

it shall be determined by a single judge by reference only to written submissions,

(b)

the judge may affirm or reverse the Tribunal’s decision,

(c)

the judge’s decision shall be final, and

(d)

if, in an application to the High Court, the judge thinks the application had no merit he shall issue a certificate under this paragraph (which shall be dealt with in accordance with the Civil Procedure Rules).

(4)

The Lord Chancellor may by order repeal subsections (2) and (3).”

CPR 54.21-27 sets out the Rules that apply to statutory review under section 101. CPR 54.25(4) provides that the court may only reverse a decision of the IAT refusing permission to appeal if satisfied that:

G and M are asylum applicants. G comes from Iran and M from Zimbabwe. Each had his application for asylum dismissed by the Secretary of State. Each appealed to an adjudicator and had his appeal dismissed. Each applied to the Immigration Appeal Tribunal (‘IAT’) for permission to appeal, pursuant to section 101 (1) of the Act. Each was refused permission by the IAT.

On 18 November 2003 G applied to the Administrative Court for a review of the IAT’s decision, pursuant to section 101 (2) of the Act (‘statutory review’). On 26 November 2003 Goldring J dismissed the application for statutory review, affirming the decision of the IAT. On 9 January 2004 G applied for permission to seek judicial review of the IAT’s refusal of permission, relying on the same grounds that he had unsuccessfully advanced in his claim for statutory review. On 23 February 2004 Collins J granted him permission to proceed with his claim for judicial review.

M adopted a different approach. On 25 February 2004 he made a simultaneous application to the Administrative Court (i) for statutory review of the IAT’s refusal to grant him permission to appeal and (ii) for permission to seek judicial review of the IAT’s decision. The same grounds were relied on for each limb of the application. On 2 March 2004 Collins J dismissed M’s application for statutory review and refused him permission to seek judicial review, affirming the decision of the IAT. However, following an oral renewal of the application for permission to seek judicial review, Collins J granted permission, so that both G and M could be considered on the same footing.

Before Collins J the Secretary of State contended that the effect of section 101 of the Act was to remove the court’s jurisdiction judicially to review the IAT’s decision, replacing this with statutory review. Collins J rejected that contention and the Secretary of State now accepts that he was right to do so. The Secretary of State’s alternative submission was that it was an abuse of process for G and M to pursue claims for judicial review when statutory review was available as an alternative remedy. Collins J agreed, and dismissed M and G’s applications on this basis, without considering the merits of their claims.

Collins J started his judgment by explaining the reason why Parliament had introduced the special regime enacted in section 101 of the Act. The object was to provide a much faster procedure than that which was involved when asylum applicants sought to challenge a refusal of permission to appeal to the IAT by seeking judicial review. A paper application for judicial review can, if refused, be renewed orally. If then refused, the applicant can seek permission to appeal to the Court of Appeal, first in writing and then, if refused, orally. The process can take many months before final determination. Some asylum seekers whose claims had no merit were buying time by pursuing hopeless applications for permission to seek judicial review.

Collins J’s conclusions appear from the following paragraphs of his judgment:

“11.

… It seems to me that where Parliament has introduced a new procedure to deal with a particular problem which it perceives to exist, the court should hesitate long before considering that procedure to be less satisfactory. Parliament was aware of the existence of judicial review and quite clearly intended, as I have said, that statutory review should take its place. It clearly regarded the new procedure as satisfactory. In the light of the two tier appeal system which exists, it was in my view entitled so to regard it. It is proportionate to recognise the need for consideration by a High Court judge but, because of the very real problems created by delay and the pursuit of unmeritorious claims, to limit that consideration in the way which s.101 and CPR 54 has ordained

20.

It is an abuse of process for a claim for judicial review to be pursued (after a statutory review has failed) on grounds which were or could have been relied on in the statutory review claim. The decision of a High Court judge cannot be judicially reviewed and this is an attempt to get around that prohibition. The claimants maintain that the court’s discretion should not be exercised so that an ouster is established in fact if not in law. However, it would clearly be contrary to Parliament’s purpose in enacting s.101 to permit judicial review unless there are exceptional circumstances and by no stretch of the imagination can a claim based on grounds which were or could have been raised in the statutory review be regarded as one to which exceptional circumstances apply. I recognise that it is dangerous to say ‘never’, but the above permits me to do so. Otherwise where new material comes to light the circumstances will have to be considered, but it is difficult to envisage any situation which would make judicial review appropriate short, perhaps, of evidence of fraud or bias or similar matters. ”

In reaching these conclusions Collins J dismissed a contention that he was breaching Articles 6 and 14 of the European Convention on Human Rights.

Mr Michael Fordham appeared on behalf of M. We would wish to record our gratitude for the assistance that his industry and his lucid submissions afforded us and our recognition of the fact that this assistance was provided ‘pro bono’. He drew attention to the fact that no suggestion had been, or could be, made that either of the appeals before us were instances of asylum seekers attempting to abuse the judicial process in order to buy time. He submitted that it was quite wrong that those who were acting in good faith should be prejudiced because of problems created by those who were not. He identified as the prejudice in question first that statutory review involved no right to an oral hearing and second that it carried no right, in the event of refusal, to appeal to the Court of Appeal. He submitted that it was unjust that asylum seekers should be restricted to a remedy that had these procedural shortcomings when what was at stake might, literally, be a matter of life and death.

Mr Raza Husain, who appeared for G, adopted Mr Fordham’s submissions and added one of his own. He submitted that immigration decisions fall “within the ambit” of the procedural obligations inherent in Articles 2, 3, 5, 6 and 8 of the Convention. To preclude the right to the full procedure of judicial review of refusals to grant permission to appeal to the IAT therefore constituted discrimination against foreign nationals that infringed Article 14 of the Convention.

It is the role of the judges to preserve the rule of law. The importance of that role has long been recognised by Parliament. It is a constitutional norm recognised by statutory provisions that protect the independence of the judiciary, such as sections 11 and 12 of the Supreme Court Act 1981. It is recognised by statutory provisions that define the jurisdiction of the judges, such as section 15 of the Supreme Court Act 1981. It is recognised by a large number of statutory provisions which confer on the citizen the right to appeal to a court against decisions of tribunals.

These rights are additional to the common law right of the citizen to have access to the courts. In particular, they are additional to the right of the citizen, subject to the permission of the Court, to seek judicial review by the High Court of administrative decisions. The common law power of the judges to review the legality of administrative action is a cornerstone of the rule of law in this country and one that the judges guard jealously. If Parliament attempts by legislation to remove that power, the rule of law is threatened. The courts will not readily accept that legislation achieves that end – see Anisminic v Foreign Compensation Commission [1969] 2 AC 147.

The exercise of the powers of judicial review has, however, long been subject to statutory procedural rules. Section 29 (1) of the Supreme Court Act 1981 preserved to the High Court the jurisdiction it had for centuries enjoyed at common law to make the prerogative orders, but any right of appeal is statutory. Furthermore the availability of the remedy of judicial review is subject to the provisions of Part 54 of the Civil Procedure Rules made pursuant to the Civil Procedure Act 1997. The complaint that is made of statutory review on this appeal is, essentially, that it does not offer procedural advantages that attend judicial review, namely a right to an oral hearing and a right, with permission, to appeal to the Court of Appeal.

It is, of course, these procedural incidents of judicial review that have contributed to the problem of delay in the handling of asylum applications. Parliament has found this unacceptable; hence the new system of statutory review which, it should be noted, applies not just to the asylum applicant but also to the Secretary of State (see s.101(2)). To permit an application for judicial review after the rejection of statutory review would mean that the provisions of section 101 of the Act had rendered the resolution of an application for asylum more, rather than less, protracted. To permit simultaneous applications for statutory review and for permission to seek judicial review would rob section 101 of the finality which it seeks to achieve. Collins J considered that the right to seek statutory review by a High Court judge was a remedy that catered adequately for the possibility that the IAT might err in law in refusing permission to appeal against an immigration decision. Given this, he considered it an abuse of process to seek the procedurally more expansive remedy of judicial review. In so concluding it seems clear to us that he had regard to the delay that such conduct would cause to the processing of asylum claims and to the fact that it was the intention of Parliament to avoid such delay when enacting section 101 of the Act. When considering the adequacy of statutory review he applied a test of proportionality that had regard to the problems caused by delay. Two questions arise. Is this consideration of proportionality appropriate? If so, is the remedy of statutory review proportionate?

It is obvious that a review by a High Court Judge on paper is a less comprehensive protection than the four-stage process of judicial review, including as it does two opportunities for oral submissions. Mr Fordham drew our attention to cases where permission to make what proved to be a successful application for judicial review of a decision of the IAT was not given until the application received an oral hearing in the Administrative Court or, in one case, consideration by the Court of Appeal. No judicial decision is proof against error and the more often a decision is reviewed, the less likely that an error will go uncorrected. Mr Fordham also relied, understandably, upon this statement of Laws LJ in Sengupta v Holmes [2002] EWCA Civ 1104 at paragraph 38:

He would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it.

Mr Fordham accepted that, when considering whether to entertain an application for judicial review, the court could consider whether an alternative existed which was proportionate to what was at stake. This, he suggested, explained the decision of this Court in R (Sivasubramaniam ) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475. The statutory provisions governing appeal to and from the County Court provided a satisfactory remedy having regard to the types of issues with which the County Court is concerned. The decision might have been different if the dispute had been as to whether or not action by a public authority was unlawful or involved other issues fit only for the High Court. Mr Fordham submitted that a remedy falling short of the full judicial review procedure could not possibly be said to be proportionate when what was at stake was fundamental human rights.

Mr Fordham addressed the following passage from paragraph 47 of the judgment of this Court in Sivasubramaniam:

“… judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused. ”

Mr Fordham submitted that this was an exceptional case, because the statutory procedure was less satisfactory than the procedure of judicial review. He also relied upon the following paragraph in the same judgment:

“52.

There are, in our judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the tribunal immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court judge is a reasonable, if not an essential, ingredient in that scrutiny.”

We consider that Mr Fordham was correct to concede that, in principle, the Court is right to consider whether an alternative remedy is proportionate when deciding whether to exercise its power of judicial review. The consideration of proportionality involves more than comparing the remedy with what is at stake in the litigation. Where Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention. The satisfactory operation of the separation of powers requires that Parliament should leave the judges free to perform their role of maintaining the rule of law but also that, in performing that role, the judges should, so far as consistent with the rule of law, have regard to legislative policy.

Thus, in Sivasubramaniam, this Court had regard to the fact that the objects of the relevant provisions of the Access to Justice Act 1999 were to avoid a waste of judicial resources and to ensure that the level of judge dealing with a potential appeal was appropriate to the dispute. In the present case it is the clear intention of Parliament, as explained by Collins J, that statutory review under section 101 of the Act should be used in place of judicial review. The reason for that intention is the wish to process asylum applications with expedition. That is a legitimate objective and Mr Fordham and Mr Husain recognised that this was so. It is right to have regard to that objective, but this cannot justify refraining from the use of judicial review if the alternative of statutory review will not provide a satisfactory safeguard for those who are, or may be, entitled to asylum.

Mr Fordham accepted that the delay that typically occurs when an asylum seeker takes advantage of all the procedural avenues open to the applicant for judicial review is not compatible with the legitimate goal of resolving asylum applications expeditiously. He submitted, however, that both the right to an oral hearing and the right to seek permission to appeal to the Court of Appeal could be accommodated by accelerating the appeal process where an asylum claim is involved. He suggested that there could be a short hearing of no more than twenty minutes or so before the same judge who had refused the paper application, within a few days of the refusal. A subsequent application for permission to appeal to the Court of Appeal could be processed with similar expedition. We are very doubtful whether it would be possible to implement a fast-track judicial review procedure that would produce a satisfactory reduction in the time needed for processing asylum claims. If it were, this would only be achieved by the dislocation of other court business, some of which might be of greater urgency. This would not be acceptable. Nor was such an option open to Collins J. He had to decide whether or not it was appropriate to embark on judicial review, with all that that involved. He decided that it was not.

It seems to us that the key finding made by Collins J was that, in the light of the existing two-tier tribunal system, statutory review was a satisfactory judicial process for the question that it was designed to address. This is the critical issue. Does the procedure as a whole carry a satisfactory assurance that the rights of those entitled to asylum will be upheld? At the outset an applicant’s case is considered by the Secretary of State. If he dismisses the claim to asylum the applicant can appeal to an adjudicator, who will usually be a lawyer and who will have satisfied the Lord Chancellor that he or she has the necessary qualifications. From the adjudicator an appeal lies to the IAT on a point of law if the IAT gives permission. The application for permission to appeal will be considered by a legally qualified member of the IAT. Statutory review is designed to pick up the cases where this member of the IAT fails to identify that there is an arguable point of law that may affect the result. Where permission to appeal to the IAT is given, either by the IAT or as a result of the decision of the judge conducting a statutory review, the subsequent decision of the IAT will, with permission from the IAT or the Court of Appeal, be subject to appeal to the Court of Appeal. Thus the procedural restriction inherent in the statutory review on paper applies at only one stage of the procedure. Protection at this stage is only required if erroneous decisions have successively been taken by the Secretary of State, the adjudicator and the member of the IAT considering the application for permission to appeal.

In Sivasubramaniam this court referred to the pressure on the IAT and the serious consequences of error on their part. The court commented on the need for anxious scrutiny of individual cases and the desirability of a review by a High Court judge as part of that process. Section 101 provides for such a review, but on paper only. Is this adequate?

How likely is it that the judge conducting the statutory review will overlook an arguable point of law that may affect the outcome in circumstances where he would not do so on an oral hearing or where his error would be identified by the Court of Appeal? The possibility cannot be discounted, but it is not great, as experience shows. The judges conducting the statutory review are judges of the Administrative Court with great experience in this area of the law. Their task is not to decide the answer to any arguable point of law, but simply whether an arguable point of law exists. If they so decide, their order will be more advantageous to the applicant than a successful application for judicial review, since it will require the IAT without more to hear the appeal. Judges will be aware of the importance of their decision and can be expected to give the most anxious scrutiny to the documents and written submissions placed before them. The comments made by Laws LJ in Sengupta were general; in the particular situation with which we are concerned we do not consider that oral submissions are likely to add significantly to what can be set out on paper by a lawyer who remembers that precision is more important than verbosity.

For these reasons, and subject to the question of discrimination to which we are about to turn, we have concluded, in agreement with Collins J, that the statutory regime, including statutory review of a refusal of permission to appeal, provides adequate and proportionate protection of the asylum seeker’s rights. It is accordingly a proper exercise of the Court’s discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review.

We would add two observations. First, the applicability of the well-established principle that judicial review is a remedy of last resort is tested objectively by the court. Thus our conclusion has had regard to the legislative purpose and effect of s.101 but not to any wider policy – if there is one – of excluding recourse to the courts. Secondly, our decision concerns only cases, such as the two before us, in which the application for judicial review is coextensive with the available statutory review. Judicial review remains open in principle in cases of justiciable errors not susceptible of statutory review.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Where Article 14 is invoked, five questions fall to be considered:

So far as the first question is concerned, Mr Husain has submitted that the facts of G’s case fall within the ambit of ‘any number of Convention rights, such as Articles 2, 3, 5, 6 and 8’. So far as the last question is concerned, Mr Husain has submitted that only the most cogent considerations could justify the discrimination in this case, and there are none. He addressed the second, third and fourth questions in the following passage in his skeleton argument:

“Immigrants who wish to challenge a decision of an administrative tribunal (the Tribunal) are differently treated to those wishing to challenge the decisions of other administrative tribunals in the ordinary courts. Immigrants have no recourse to a public hearing, nor to the appellate courts. Even those whose recourse to the High Court is by way of statutory challenge (rather than judicial review) have access to an oral hearing and to the ability to appeal. The operative ground for this difference in treatment is nationality. ”

We propose to consider each question in turn.

Convention rights: Convention rights are commonly invoked where an immigration decision is sought. We accept that it is at least arguable that the facts of the two cases before us fall ‘within the ambit’ of one or more Convention rights.

Difference of treatment: Mr Husain identifies as the relevant difference in treatment the procedures available to those who wish to challenge the decisions of other administrative tribunals and the procedure under section 101 of the Act. Procedures under which decisions of tribunals may be challenged undoubtedly differ. In some cases there is a statutory right of appeal. In others there is no such right. But in all cases there is the ultimate possibility of seeking judicial review if no satisfactory alternative remedy is available. G’s complaint in this case is that he has been denied judicial review. It seems to us that if he is to make out a case of discrimination, he must show that he belongs to a class which has been differently treated from a comparable class in relation to the exercise of the remedy of judicial review.

We have held that, subject to the issue of discrimination, judicial review should not be granted in relation to an a statutory review which has been, or could have been, brought under section 101 against the refusal by the IAT of permission to appeal. We have so held on the ground that the statutory review is a satisfactory alternative remedy. It might be said that there has been no differential treatment because we have applied the principle that is applicable in respect of every application for judicial review. In reaching our conclusion we have, however, had regard to the legislative policy which has shaped the procedure under section 101. The effect of our decision has been to confine G and M to review by a High Court judge on the papers of a refusal by the IAT of permission to appeal. Such a procedural restriction is unusual. It is, however, only one incident in a complex regime for appealing a decision taken, in the first instance, by the Secretary of State. It is very questionable whether this regime is, as a matter of procedure, less favourable than other regimes for challenging administrative decisions. We propose, however, to proceed on the premise that the procedure for challenging an immigration decision differs adversely, by reason of the procedural limitation of statutory review, from procedures for challenging administrative decisions in which other tribunals are involved.

Analogous situations: Mr Husain addressed no argument to the requirement to demonstrate adverse treatment when compared to others in analogous situations. He treated it as axiomatic that all seeking to appeal from decisions of tribunals are in the same position. We do not believe that it is. Those seeking asylum are in a unique position. They have no vested right to enter or remain in this country. Article 5 1(f) of the Convention provides recognition, in another context, of the fact that special treatment may be appropriate in the interests of immigration control. Thus we do not consider that those seeking immigration decisions are in a position that is necessarily analogous to those seeking other forms of relief under procedures which involve tribunals.

Proscribed grounds: Article 14 discrimination involves adverse differential treatment on the ground of some form or aspect of status. The treatment accorded to those seeking asylum or immigration decisions is accorded to them because of the situation in which they find themselves, and the fact that they do not have the rights which are enjoyed by EC nationals is part of the reason that they find themselves in that situation. We consider, therefore, that those seeking asylum or immigration decisions have a status capable of constituting a ground of discrimination that infringes Article 14.

There are two related reasons why we consider that the discretionary denial of judicial review in cases such as the present is objectively justified. One is that, as article 5(1)(f) of the ECtHR recognises, non-nationals seeking entry or asylum stand in a fundamentally different legal situation from those who can enter or remain by right. The courts will so far as possible ensure due process for them, but due process does not necessarily mean the same process for all. The other reason is the one we have already given: that s.101, while it differs from other forms of recourse to the courts, is not deficient or unjust to an extent requiring alternative recourse by way of judicial review.

For the reasons that we have given, these appeals are dismissed.