Criminal Justice and Courts Bill

Part 3

Appeals in civil proceedings

Costs in civil proceedings

Part 4 Judicial review

As to appeals in civil proceedings, we have no objection to leapfrog appeals where both parties consent and where the permission of the courts is given in the appropriate form provided that the criteria for leap-frogging are objective and uncontentious. We oppose leap-frogging without consent and have particular concerns about leapfrogging from the Special Immigration Appeals Commission.

As to costs in civil proceedings, we have no objection to the proposals on wasted costs.

As to judicial review, it is somewhat bewildering for ILPA to be responding to a Bill that aims to reduce the number of applications for judicial review [2] at the same time as working on a bill that will increase substantially the number of such applications. The Appeals Impact Assessment produced for the current Immigration Bill models the effects of an extra 5,600 judicial reviews being started and of up to 1000 granted permission. This appears to be an under estimate, since the calculation that produces it takes as its starting point the number of appeals allowed by the Immigration and Asylum Chamber of the First-tier Tribunal, rather than the total number of appeals started.

We oppose clause 50 standing part of the bill.

We argue that clauses 51 and 52 fail to have sufficient regard to the position of the "pure funder" or to the need for such persons given cuts to legal aid.

We oppose clause 53 and argue that it fails to consider that interveners assist the court or to consider the financial pressures on many of those best placed to provide such assistance. Similarly clauses 54 and 55 fail to understand the inequality of arms between government and those who seek to litigate in the public interest.

ILPA supports JUSTICE’s call for a new clause that would restrict the power of the Secretary of State in section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to amend, vary or restrict, by secondary legislation, eligibility for legal aid for services connected with judicial review.

Introduction

1. The Immigration Law Practitioners’ Association (ILPA) is a registered charity and a professional membership association the majority of whose members are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. Established over 25 years ago, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through an extensive programme of training and disseminating information and by providing evidence-based research and opinion. ILPA has worked with parliamentarians of all parties and none on and give oral and written evidence to parliamentary committees since its inception.

2. We have had sight of JUSTICE’s Criminal Justice and Courts bill: Civil Appeals and Judicial Review House of Commons’ Committee Stage Briefing and suggested amendments of 17 March 2014 to which we make reference in this response. It is available at http://www.justice.org.uk/data/files/resources/364/JUSTICE-Briefing-CJC-Bill-Committee-Stage-Civil-FINAL-March-2014.pdf

Part 3: Courts and Tribunals

Appeals in civil proceedings

3. This part concerns the leap-frogging of appeals to the Supreme Court. ILPA’s particular interest is in Clause 32, appeals from the High Court, Clause 33, appeals from the Upper Tribunal and Clause 35, appeals from the Special Immigration Appeals Commission to the Supreme Court. The judge or tribunal judge provides a certificate and a party can then ask the Supreme Court for permission to appeal. That application is to be determined by the Supreme Court without a hearing.

4. We have no objection to leapfrog appeals where both parties consent and where the permission of the courts is given in the appropriate form [3] provided that the criteria for leap-frogging are objective and uncontentious or that the power is at large. Given the nature of the proceedings before the Special Immigration Appeals Commission we consider it highly unlikely that either the parties would consent or the courts give permission for such an appeal to be leapfrogged.

5. The clauses do not require the consent of the parties and clause 32 amends the Administration of Justice Act 1969 so that the need for the consent of the parties will be dispensed with in all cases. This we oppose. The parties are giving up a hearing before a court and should not be forced to do this. There are plenty of incentives for the parties to consent, including cost, speed and ensuring that the case is heard by the Supreme Court. Of particular concern would be cases where one party consents and the other does not.

6. As to matters of case management, there is a risk of lengthy and protracted debate about the merits and demerits of leapfrogging a particular case. Requiring consent is procedurally more straightforward and more efficient.

7. Although provisions that the application for permission is to be determined by the Supreme Court without a hearing replicate existing provisions in section 13 of the Administration of Justice Act 1969 we do not consider that they are appropriate in cases where the parties have not expressly consented to the leap-frogging and where the criteria for the issuing of a certificate are not objective and not uncontentious.

8. As to Clause 32, we suggest that questions of whether a matter is of national importance may be uncontentious but may in some instances involve political decisions and that it is not therefore a suitable criterion.

9. As to Clause 33, ILPA’s interest lies primarily in appeals from the Immigration and Asylum Chamber although we also have an interest in other appeals that touch on immigration and free movement law, for example in social security appeals that determine certain points of European Union free movement law.

10. It is desirable that the issues in a case have been narrowed as far as is possible before they reach the Supreme Court, so that the court can provide a clear, accessible and authoritative judgment that will assist judges, tribunal judges and other decision-makers in the future. There is a risk that without the winnowing [4] that very often takes place in the Court of Appeal, considerable time and expense will be spent before the Supreme Court narrowing issues and clarifying questions. We recall Lord Neuberger’s warning:

…we Judges could do better…We are often pretty prolix. … when Judges deal with the law, we are often setting out principles which strangers to the particular case, lay people, lawyers and other judges, should be able to understand and apply. We seem to feel the need to deal with every aspect of every point …and that makes the judgment often difficult and unrewarding to follow. Reading some judgments one rather loses the will to live – and that is particularly disconcerting when it’s your own judgment that you are reading. [5]

11. Issues are not always clearly identified in the tribunals, as the Court of Appeal has highlighted [6] . Determinations are often prolix and the precise approach to points of law difficult to isolate. It is arguably not in anyone’s interest that the Supreme Court be involved in extensive preliminary work prior to isolating the point of law it is to determine. Where there is binding Supreme Court authority on a point it may be to everyone’s advantage to have a judgment of the Court of Appeal that applies that authority and sets out the results to which it leads, before the Supreme Court considers whether it should depart from that authority. It is not obvious that it is more efficient to roll those tasks into one.

12. We do not consider that the criteria proposed in the Bill are objective and uncontentious. We consider that there is scope for dispute as to whether a case has been fully argued in the proceedings and fully considered in the judgment. We are mindful that in very many immigration, as opposed to asylum cases, there is now no legal aid and the person under immigration control or asserting free movement rights will have been unrepresented. We do not consider that the Upper Tribunal could assert that a case had been fully argued where a party before it was unrepresented.

13. We consider that is for the superior courts rather than the Tribunal itself to determine whether the Tribunal has considered a point of law fully.

14. New clause 14A(4)(b) inserted into the Tribunal, Courts and Enforcement Act 2007, which provides for cases to be leap-frogged where the Upper Tribunal is bound by a decision of an appellate court appears on its face to create a possibility of a case on which there is settled law being leap-frogged.

15. ILPA opposes Clause 35. The Special Immigration Appeals Commission is a first-instance tribunal and primary finder of fact. Proceedings before the Commission are complicated by the withholding of information and evidence from a party to the proceedings, which are weighted against the appellant. Removing a tier of judicial scrutiny risks compounding, or at least removing opportunities to mitigate, this prejudice. All our comments on Clause 32 apply, save that there is legal aid for proceedings before the Commission. There is a risk that attempts could be made to rely upon proposed new section 7B(5)(a) concerning 'national importance' as a matter of routine in such cases given that they transfer to the Commission because they concern questions of national security.

16. We support JUSTICE’s proposal [7] for amendments that would prevent leapfrog in any case where a court or tribunal has used the closed material procedure. We agree with JUSTICE that removing the consideration of the Court of Appeal risks expanding the number of cases in which the highest court in the land is invited to adopt closed material procedures. The Justices have expressed the view that the use of closed material procedures by the Supreme Court should be exceptional given its constitutional role [8] .

Costs in civil proceedings

Clause 36 Wasted Costs in certain civil proceedings

17. Clause 36 provides that where a court makes a wasted costs order it "must inform such of the following as it considers appropriate" and names an approved regulator or the Director of Legal Aid casework. The explanatory note interprets this to mean that the court must consider notifying a regulator and/or the Director. ILPA has no quarrel with this save to ask whether the drafting could be improved to remove a potential ambiguity and make clear that it is for the Court to decide whether to make any referral.

Part 4 Judicial review

18. It is somewhat bewildering for ILPA to be responding to a Bill that aims to reduce the number of applications for judicial review [9] at the same time as working on a bill that will increase substantially the number of such applications. It is said in the Appeals Impact Assessment produced for the Immigration Bill currently before parliament that displacement onto judicial review resulting from the abolition of appeal rights in immigration cases cannot be quantified and therefore costs cannot be estimated. But the "sensitivity analysis" in the assessment models the effects of an extra 5,600 judicial reviews being started and of up to 1000 granted permission. This appears to be an under estimate, since the calculation that produces it takes as its starting point the number of appeals allowed by the Immigration and Asylum Chamber of the First-tier Tribunal, rather than the total number of appeals started. Even with the erroneous basis of calculation, we should be looking at an extraordinary increase. In 2011 there were 8,711 immigration and asylum judicial reviews [10] in toto and only 4,630 reached the stage of a decision on permission. Judicial reviews cost more than appeals, costs can be sought from the other party, and damages may be claimed. Even as the Lord Chancellor protests that there are too many judicial reviews [11] the Home Office moves to increase the number. None of this increase can be attributed to migrants or their advisors.

19. This follows the trend of recent years that has seen the number of judicial review applications in immigration and asylum cases increase as a result of Home Office action in removing rights of appeal against its decisions and in making unlawful decisions in individual cases. While immigration and asylum judicial reviews make up a significant proportion of judicial reviews, it does not follow that these cases are brought as an abuse or delaying tactic [12] . Other factors contribute. The absence of rights of appeal against many immigration decisions already forces many migrants to use judicial review as a port of first (rather than last) resort when seeking to challenge an unlawful Home Office decision. Changes to the Immigration Rules also have an effect. Many applications for leave to remain made on family and private life grounds under the Immigration Rules (as amended in July 2012) have been refused without a right of appeal. The quality of many of these refusals has been poor, leading to a need to use the only legal remedy available, an application for judicial review. It has also been necessary for many applicants to challenge the rejection of applications for want of a fee. In addition, unreasonable delay in Home Office decision-making or the incorrect application of a 'no recourse to public funds' condition on a grant of leave has led to further challenges by way of judicial review. Any increase judicial review in these classes of case is squarely the fault of the Home Office.

20. In the statistical report released on 25 June 2013, data was provided showing that in cases of civil representation for immigration and nationality, 70% of cases where proceedings were issued had a benefit to the client [13] . This figure will include claims issued in the Court of Appeal and Supreme Court as well as the High Court. The data does not indicate a level of unsuccessful claims that is in any way unacceptable.

21. Any consideration of the use of judicial review in these cases must take account of the context which includes at the least the matters discussed in the following paragraphs.

22. The conduct of the Home Office Agency as a litigant:

· The consistently poor management, service delivery and decision-making of the former UK Border Agency. For just one example, refer to the Independent Chief Inspector of Borders and Immigration’s report on his inspection of the handling of legacy asylum and migration cases by the UK Border Agency [14] ;

· The consistent failure of the Home Office to respond to pre-action protocol letters in immigration cases in a timely manner or at all and to acknowledge service within the time limits set by the court [15] ;

· The practice of the Home Office in serving non-appealable immigration decisions at the same time as or after detention and service of removal directions, leading to urgent applications for judicial review with little or no time for compliance with pre-action protocol procedures (see the evidence cited by Silber J in R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin) at paragraphs 50-54);

· The consistent failure of Home Office to abide by court decisions, for example the refusal of the former UK Border Agency to grant permission to work to asylum seekers with outstanding ‘fresh claims’ in line with the Court of Appeal’s decision in R (ZO (Somalia)) v SSHD [2009] EWCA 442, pending the appeal to the Supreme Court, despite the fact that there was no stay of the Court of Appeal’s order (see Bahta [16] );

· The delay in amending rules and/or guidance to caseworkers to implement such decisions, for example such as occurred following the decision of the Court of Justice of the European Union in Ruiz Zambrano (Case C-34/09);

· The refusal to stay like cases pending test case litigation save in cases where judicial reviews are actually issued (as has occurred for example in litigation about the safety of removal under the Dublin Regulation to Greece and Italy).

23. The complexity of immigration law and the frequency of change. There have been six Acts of Parliament in this field since 2002 and the bill described above, removing all appeal rights is currently before parliament; in 2012 alone there were nine statements of changes in the Immigration Rules and ten judgments were handed down by the Supreme Court in immigration-related cases. Lord Taylor of Holbeach, in the debate on the Crime and Courts Bill 2012, observed:

"I agree with my noble friend that no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them." [17]

24. The importance of what is at stake in immigration and asylum cases. These cases were described by Lord Avebury in debate on the Crime and Courts Bill in July 2012 as ‘the most sensitive of cases.’ [18]

25. The complexity of appeal rights. Described by Lord Hope in BA (Nigeria) [2009] UKSC 7 as an "elaborate system". The removal of appeal rights through frequent legislative amendment.

26. The Immigration Bill aside, there is reason to expect a decrease in immigration and asylum judicial reviews. On 15 February 2010 immigration appeals were transferred to the unified tribunals system. Prior to transfer, applicants who wished to challenge an initial decision by the Asylum and Immigration Tribunal could apply for reconsideration pursuant to s 103A of the Nationality Immigration and Asylum Act 2002. Applications for reconsideration were considered initially by the Asylum and Immigration Tribunal, but, if rejected, could be renewed on the papers for reconsideration by a High Court Judge. Since transfer, applications for permission to appeal from the First-tier Tribunal are considered first by that Tribunal and then, if refused, may be renewed to the Upper Tribunal. While it is in principle possible to seek judicial review of a refusal of permission to appeal by the Upper Tribunal, the grounds on which judicial review may be sought are very limited: R (Cart) v Upper Tribunal [2011] UKSC 28. These changes to the appeal structure ought to have led or to lead to a reduction in the number of appeals requiring High Court supervision.

27. On 17 October 2011 "fresh claim" judicial reviews transferred to the Upper Tribunal. These are cases where a person makes a subsequent asylum claim and the Home Office does not accept that a new matter is raised and declines to treat the claim as a "fresh" claim for asylum. There is no right of appeal against this decision. Of the 77% of judicial review applications issued in 2010 which concerned immigration or asylum issues it is likely that a significant proportion were fresh claim judicial reviews. Then in November 2013, under powers taken in the Crime and Courts Act 2013, a much wider range of immigration and asylum judicial reviews were transferred to the Upper Tribunal [19] . Many of these concern challenges to certificates that remove rights of appeal. The burden on the High Court has been substantially reduced as a result. Further, as a result of the proposals in the Immigration bill to remove rights of appeal, it is likely that many judicial review cases brought before the Upper Tribunal in the future, will simply be against Home Office decisions where there might previously have been a right of appeal to the Tribunals (one legal remedy taking the place of another).

Clause 50 Likelihood of substantially different outcome for applicant

28. This prohibits a grant of leave to bring an application for judicial review or for relief to be granted and/or damages awarded where an application has been brought if it appears to the court or Upper Tribunal to be "highly likely" that the outcome for the applicant would not have been "substantially different" if the conduct complained of had not occurred. The point is one that the court /Upper Tribunal can take of its own motion, as well as on application by the defendant.

29. ILPA considers that this clause should not stand part of the Bill. If is to stand part of the Bill, we support the amendments to it proposed by JUSTICE. Judicial review is a procedural remedy. The Administrative Court hearing a judicial review is not exercising an appellate jurisdiction but looking at the lawfulness, including the procedural propriety, of the decision-making. Procedural defects are the proper subjects of judicial review. Substantive merits may be examined only insofar as a decision is irrational. A "no difference" principle has been expressly disapproved in certain areas, the scope of which are unresolved – see AF (No 3) v Secretary of State for the Home Department [2009] UKHL 28, [2010] 2 AC 269). In AF (No 3), following the judgment of the European Court of Human Rights in A v United Kingdom (2009) 49 EHRR 625, the House of Lords confirmed that the ‘no difference’ principle does not apply to the non-disclosure of security-sensitive material containing the case against an individual (at least in the context of control orders).

30. It is possible to argue "no difference" as early as in the Acknowledgment of Service letter. We have seen permission refused on the basis of "no difference" where it is clear that a procedural flaw has had no impact on outcome and there is no other reason, i.e. no general point of principle, to hear the claim.

31. We consider that in general the balance is struck correctly in the courts’ present treatment of the ‘no difference’ principle. In the leading case in the immigration and asylum context – SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 the inevitability threshold was satisfied. Whilst rare, it is by no means an anomaly and reflects the efficacy of the current position. Maintaining the status quo avoids the undesirable position in which the permission hearing becomes a dress rehearsal for the substantive claim but still permits recourse to ‘no difference’ arguments in clear-cut cases.

32. The costs of disputes over procedural defects could often be avoided if procedural disputes were resolved at a stage prior to litigation with improved procedures, at the outset or following the problem’s being highlighted by a pre-action protocol letter if a government department is willing to respond at this stage.

33. The status quo provides the possibility of a ‘no difference’ challenge at the permission stage. It strikes the correct balance. It permits obvious cases to be decided at the permission stage. However, for cases where the question of whether the decision would have inevitably been the same absent the procedural irregularity is anything less than clear cut, or where other issues are raised by the challenge, the question should be heard at a substantive hearing. For a judge to undertake a full assessment at the permission stage, in particular an assessment that respects the requirements of anxious scrutiny [20] necessary in the immigration and asylum field, full disclosure and evidential preparation would be necessary. Effectively, this would amount to a mini-hearing, which would add to cost and delay of procedural challenges rather than mitigate the problems identified in the Consultation.

34. The drafting of the Bill is broad enough for "no difference" to encompass actual and/or apparent bias; and/or failure to apply a relevant and binding policy.

35. A test of "highly likely "would require the court or Tribunal to overstep its constitutional limits and engage in an assessment of the substantial merits of the decision. The point is made by Lord Bingham in R v Chief Constable of Thames Valley, ex p Cotton [1990] IRLR 344:

[i]n considering whether the complainant’s representatives would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.

36. It is re-iterated in R (Smith) [2006] EWCA Civ 1291, [2006] 1 WLR 3315, in which the Court of Appeal said the following (at 3320-3321):

Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision.

37. And by Maurice Kay LJ in R (Shoesmith) v Ofsted et ors [2011] EWCA Civ 642 (para 72):

…this is not such a clear case that I feel able to say ‘no difference’ without risking inappropriate encroachment into "the forbidden territory of evaluating the substantial merits of the decision".

38. The clause has the potential to produce the opposite outcome from that which is intended. It invites a court to get involved in the merits of administrative decision-making.

39. For the court to make a decision about what outcome was likely, or would have occurred, may require a detailed assessment of underlying evidence (which may be very extensive), which is at present not required. This will fundamentally alter the nature of the judicial review process, increasing the length and cost of proceedings considerably.

40. The application of the ‘no difference’ principle requires a court to second-guess the outcome of the case had the procedural irregularity not taken place. This is a process that is notoriously prone to error. The well-known dictum of Megarry J in John v Rees [1970] Ch 345 at 402 makes the point:

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious", they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has had anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

41. As at present, the principle in John v Rees should be reflected in the threshold for assessing whether a procedural defect has made a difference.

42. Appearances matter and justice should be seen to be done. The words of Lord Widgery in R v Thames Magistrates’ Court, ex p Polemis [1974] 1 WLR 1371 are instructive:

It is…absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me to be no answer to the applicant to say: ‘Well, even if the case had been properly conducted, the result would have been the same.’ This is mixing up the doing of justice with seeing that justice is done.

43. If a court cannot be sure that an individual is not prejudiced, it should not withhold a remedy. Lord Donaldson MR in R (Barrow) v Leicester City Justices [1991] 2 QB 260 ( 290):

Any unfairness, whether apparent or actual and however inadvertent, strikes at the roots of justice. I cannot be sure that the applicants were not prejudiced and accordingly I have no doubt that the justices’ order should be quashed.

44. Rights to procedural protection are not to be lightly denied. The propriety of lowering the threshold from inevitability to "highly likely" has not been tested against the requirements of Article 6 of the European Convention on Human Rights and, for matters within the scope of EU law, Article 47 of the Charter of Fundamental Rights of the European Union. Although Article 6 does not apply to decisions on the entry, residence and expulsion of migrants, [21] there is no such restriction on Article 47. Moreover Article 5(4) of the European Convention on Human Rights provides protection to persons in immigration detention and there are implied procedural rights in Articles 3 and 8 of the Convention. Clause 50 is unlikely to be immune from challenge on EU and/or Strasbourg human rights grounds.

45. Prompt and detailed acknowledgements of service and early provision of all relevant information can result in a matter being resolved before it reaches the courts. Where it is clear that there has been non-compliance with a procedural requirement, the relevant department should set out at the earliest possible stage how it intends to address the error and within what timescale and give such undertakings as it is in a position to give as to its future conduct. This is far more likely to result in the matter being resolved pre-permission or, if it reaches the permission stage, to matters being clear-cut by then.

46. The Government continues to miss opportunities for early settlement of claims by its failure to provide instructions to her own lawyers and allow them to keep to deadlines for acknowledgment of service. In the recent case of Kadyamarunga v SSSHD [2014] EWHC 301 (Admin) (14 February 2014) Mr Justice Green stated at para 20:

…it is now more or less a notorious fact that the Defendant is overwhelmed by both applications for leave to remain and disputes over such decisions this is not in and of itself an excuse for not complying with the procedural rules governing judicial reviews. I acknowledge that lawyers acting for the Defendant (both in-house and external) may be under considerable strain in cases of this sort. However, it is not acceptable for the internal problems of the Defendant or her advisors to be visited upon the judicial system.  [22]

47. This clause places a further burden on claimants and their representatives while the State continues to increase the burden on the justice system through its conduct in litigation.

48. Procedural failings can make a difference to the substantive outcome in a case. Thakur (PBS – common law fairness) [23] is an example of a case in which a procedural defect (failure to provide an opportunity to make representations) led to a different substantive outcome. [24] See also Walumba Lumba (Congo) v SSHD; Kadian Mighty (Jamaica) v SSHD [2011] UKSC 12.