The Court of Appeal recently provided new Guidance for Judicial Review cases in the matter of Wasif v The Secretary of State for the Home Department  EWCA Civ 82. This case provides guidance for Applicants who have had their application for Judicial Review refused and are prevented from seeking an oral hearing in their matter. Usually Applicants are entitled to a right of appeal to the Court of Appeal (as remedy), however this is only on paper and they do not have a right to an oral hearing. The Court of Appeal has now provided guidance in favour of Applicants and to clarify any reasons for refusal. We consider this new guidance in detail below.
The Facts of the Judicial Review Case
In the above mentioned case the Appellants made an application to Upper Tribunal for Judicial Review of a decision by the Home Office to refuse them leave to remain in the UK. The application was refused on the papers, without an oral hearing; and the Immigration Tribunal concluded that the application was totally without merit, meaning the matter was weak, frivolous and there were no substantial grounds for the Court to consider. As far as a remedy is concerned the Appellants were previously entitled to ask for their applications to be reconsidered at an oral hearing.
However new immigration rules were introduced in July 2013 which stated that where a court refuses an application in this way then an individual may not request that decision to be reconsidered at a hearing. The Court of Appeal has now provided guidance in this respect in favour of Applicants.
The New Guidance of the Court of Appeal
The new guidance considered by the Court of Appeal now reads:
- Judges should not deem applications as totally without merit (that is weak frivolous or without substantial grounds that need consideration) as an automatic consequence of refusing permission.
- [N]o Judge should refuse an application in such a way unless confident after careful consideration that the case truly is bound to fail.
- An oral renewal hearing allows an individual to address the said weaknesses in their matter and this might lead a Judge to grant in favour of an appellant. The Judge should only refuse an application if they are satisfied that in the circumstances of a particular case an oral hearing could not help an appellant.
- Judges considering Judicial Review applications will encounter cases where the claimant is unrepresented – in which the claim form/grounds and/or the supporting materials are too confused or insufficient to satisfy the grant of permission but where the Judge nevertheless suspects that proper presentation might provide an arguable claim, in such cases he or she should give an individual permission for an oral hearing. The right course will usually be to identify the nature of the problem, and give an individual the opportunity to address the problems at an oral renewal hearing if they can.
It was also pointed out that at the time that a Judge decides the permission for a Judicial Review application on the papers the Home Office will have had the opportunity to file a response along with a defence and so Judges should not refuse permission on the basis of points raised in a Home Office defence. Further that the point of a hearing is not that an individual is entitled to a second bite of the cherry in the hope of finding a more sympathetic Judge. Having said that, it cannot be denied that some Judges are in fact more sympathetic than others and likely to take a very different view about whether permission should be granted.
Good news for Applicants in Judicial Review
The Court of Appeal also highlighted the importance of providing ‘proper reason’ where a refusal is ordered by a Judge. A Judge must identify the nature of the problem, giving an individual the opportunity to address the problems at an oral renewal hearing;
where an application is refused, ‘so that the claimant has reached the end of the road (subject to appeal)…care must be taken to ensure that all the arguments raised in the grounds are properly addressed … It does not follow that the reasons for refusing permission need always be lengthy…if a ground can properly be disposed of adequately in a sentence or two so much the better. But what is necessary depends on the case. All…points must be identified and addressed’.
The Court of Appeal was extremely critical of insufficient reasoning in refusing permission to Judicial Review by Upper Tribunal Judges and held that it must be clear why a Judge has deemed a Judicial Review totally without merit and the reasoning must sufficiently justify the order.
Successful Judicial Review Applications
There is often a misconception by businesses, entrepreneurs and applicants alike that law firms without specialisation in immigration law will be in a position to handle the complexities that follow the immigration process. Immigration tribunals are flooded with Applicants who are left vulnerable by what is now a shockingly familiar and depressing pattern in which legal representatives demonstrate a remarkable lack of knowledge and complete disregard for the substantive and procedural rules governing immigration law.
A lack of knowledge demonstrated by some law firms means Judicial Review applications are often made in an incorrect way or with incorrect documents at the initial stage. These may then be immediately rejected by the Home Office and (unlike a refused application which can carry a right of appeal) deemed invalid. This could leave an applicant in muddy waters as they may well find themselves in detention facing imminent removal and if not in detention they may be deemed an overstayer unless corrective action is taken. This can cause unnecessary delay for applicants who do not have the benefit of specialised and professional legal advice.
Choosing the right law firm from the beginning will not only allow for an easy mind in preparing for an application, but will also mean that in the long run applicants will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines.
Our team of experienced and professionally qualified immigration solicitors and barristers
Our team bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your Judicial Review application by providing you with advice from our leading team of barristers before your matter even reaches the Immigration Tribunal.
If require UK immigration advice regarding Judicial Review you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02071830570 for a telephone case assessment.