Court of Appeal: Applicants to be granted Judicial Review hearing

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 [2016] 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