27 December, 2012
The Ministry of Justice has recently published a
consultation paper on this subject. The
need for reform arises because of the enormous growth in numbers of
applications for Judicial Review (JR) and the paper acknowledges in paragraph
24 that the main area of growth has been in immigration and asylum cases. In 2000 there were 4250 applications and in
2011 over 11,000. The paper is mainly directed at consulting with practitioners
on the practicalities of speeding up and simplifying procedures. It
acknowledges that since changes in immigration and asylum procedures in 2011
certain limited categories of judicial review applications can now be heard in
the Upper Tribunal, Immigration and Asylum Chamber, which is a court of record.
I quote paragraph 25 of the paper:
“Measures
in the Crime and Courts Bill, currently before Parliament, will, if enacted,
allow for all immigration, asylum or
nationality judicial reviews [emphasis supplied] to be heard in the Upper
Tribunal…”
The Crime and Courts Bill, which recently completed
its passage through the Lords and now goes to the Commons, is a substantial
piece of legislation covering a wide range of subjects relating to the
administration of justice. It does not deal specifically with immigration or
asylum. However, it aims at achieving greater flexibility in the deployment of
judges across the various chambers of the Tribunal and will provide for the
possibility of judges of the First Tier and Upper Tribunal to be deployed into
the ordinary courts. This should in the case of immigration and asylum JR
applications mean that there will be a greater reserve of judges with
appropriate experience to deal with them. The paragraph quoted suggests that
the Upper Tribunal will have powers to hear all immigration and asylum JR applications
itself. There is nothing specifically to that effect in the explanatory notes
on the Bill. I assume that the words quoted above mean that the flexibility of
judicial manpower which should result from the operation of the Bill when it
becomes an Act will have that result.
The consultation paper does not deal with legal aid,
though this is obviously a material factor in relation to JR applications. I
have ascertained that legal aid is obtainable for JR applications, but not if
the subject matter of the application has been dismissed on appeal or JR in the
previous 12 months. It is also unavailable or challenges to removal directions
following a decision to remove or conclusion of appeal against such a decision
in the previous 12 months. A general safeguard limiting the availability of
legal aid in particular cases is that applicants should be able to demonstrate
that they have arguable cases which stand some chance of success.
Harry Mitchell, QC
Honorary Legal Adviser,
Migration Watch UK