32.Clause 2 of the Bill applies UK wide in respect of matters of reserved law. The Immigration and Asylum chamber of the First Tier Tribunal (FTT) hears appeals against decisions made by the Home Office relating to permission to stay in the UK, deportation from the UK and entry clearance to the UK. This includes appeals against decisions on asylum applications. If an appeal to the FTT is unsuccessful, there is a right of appeal to the Upper Tribunal (UT) “on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.”37 An appeal to the UT can, however, only go ahead if permission is granted. The appellant can ask the FTT for permission and, if this is refused, can also ask the UT to grant permission. If the UT refuses permission, there is no further appeal available.
33.In the case of R (Cart) v Upper Tribunal38 and Eba v Advocate General for Scotland,39 the Supreme Court confirmed, however, that the appellant can apply to the High Court in England and Wales and the Court of Session in Scotland for a judicial review of an UT refusal to grant permission to appeal, but only if the threshold criteria used for ‘second tier’ appeals are applied. This means that a judicial review application will only be given permission to go ahead if there are reasonable prospects of establishing that the UT was wrong in law, and if it would also raise some important point or principle or practice, or if there is also some other compelling reason for the relevant court to hear the judicial review.
34.In the Cart judgement, Baroness Hale emphasised the risk of legal errors not being picked up in a ‘closed’ tribunal system:
But that risk is much higher in the specialist tribunal jurisdictions, however expert and high-powered they may be. As a superior court of record, the Upper Tribunal is empowered to set precedent, often in a highly technical and fast-moving area of law. The judge in the First-tier Tribunal will follow the precedent set by the Upper Tribunal and refuse permission to appeal because he is confident that the Upper Tribunal will do so too. The Upper Tribunal will refuse permission to appeal because it considers the precedent to be correct... There is therefore a real risk of the Upper Tribunal becoming in reality the final arbiter of the law, which is not what Parliament has provided. Serious questions of law might never be “channelled into the legal system” (as Sedley LJ put it  QB 120, 169, para 30) because there would be no independent means of spotting them.40
35.Clause 2 of the Bill would insert a new section 11A into the Tribunals, Courts and Enforcement Act 2007 to reverse the Supreme Court’s decision in R (Cart) v Upper Tribunal. This would make decisions of the Upper Tribunal on applications for permission to appeal “final, and not liable to be questioned or set aside in any other court”, except in very limited cases.41 For the avoidance of doubt, the proposal specifies that this exclusion includes applications for judicial review.42 This includes the jurisdiction of the Court of Session and High Court of Northern Ireland over decisions of the UT on leave to appeal where the underlying matter is reserved. Clause 2 is an ouster clause, in that it seeks to deny the courts’ supervisory jurisdiction over the exercise of public power. We give further consideration to the possible wider use of ouster clauses in Chapter 4 below.
36.Under the new s.11A(5) the exclusion of judicial review would not have effect if the provision giving the FTT jurisdiction to make the first-instance decision could have been made by an Act of the Scottish Parliament, or an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State. There is a live issue as to whether the UK Government should have sought a Legislative Consent Motion from the Scottish Parliament in respect of Clause 2 of the Bill.43
37.Clause 2 would provide for applications for judicial review to still be available only where the decision to refuse permission to appeal gives rise to a question whether:
a)the UT has or had a valid application before it [for permission to appeal],
b)the UT is or was properly constituted for the purpose of dealing with the application, or
c)the UT is acting or has acted—
i)in bad faith, or
ii)in fundamental breach of the principles of natural justice.44
38.Clause 2 follows a recommendation in the IRAL Report that applications for judicial review of the UT’s refusal of permission to appeal (known as ‘Cart judicial reviews’) should be discontinued. The IRAL was concerned with the time and resource put into these judicial review claims relative to the likelihood of them actually picking up on errors in the FTT or UT. IRAL’s statistics, which suggested a success rate of significantly less than 1%, were however demonstrably flawed.45 The Government has produced its own statistics which state that of the 1,249 Cart judicial review applications in 2018–2019, some 92 (7.4%) were successful insofar as they resulted in remittal to the UT. Of those remitted appeals, 85 were decided by the UT and, of those, 42 were ultimately successful. This results in an overall success figure of 3.4% which can be compared with a generally accepted figure of between 33 and 50% success (including settlement) in other judicial reviews.46 There is no evidence that there is the same problem in Scotland. On the contrary, there is a good example of a recent successful Cart/Eba judicial review: CM (Petitioner) 2021 CSIH 15, in which the FTT, UT, and the Lord Ordinary misunderstood the petitioner›s evidence and the Inner House intervened to reduce the UT›s decision refusing permission to appeal.47
39.The vast majority of Cart JRs relate to immigration and asylum claims.48 In such cases, fundamental human rights such as the right to life (Article 2 ECHR) and the right not to be tortured (Article 3 ECHR) are frequently at stake.49 If the tribunal makes an error it can result in a claimant being returned to face persecution, serious human rights abuses or even death in their country of origin. Removing the right to judicially review refusals of permission to appeal in all but the most exceptional circumstances will result in a, statistically small, number of these cases being wrongly decided, and those individuals facing a real risk of serious human rights abuses.
40.Procedural changes might be able to reduce the number of unjustified judicial review applications being made without precluding Cart judicial reviews altogether. For example, the Administrative Law Bar Association (ALBA) proposed the following administrative changes in their response to the Government’s consultation on reform of judicial review:
41.Judicial supervision of the Upper Tribunal protects against legal error. While only a small proportion of Cart judicial review applications are successful, those applications may prevent individuals being wrongly removed from the UK to face the most heinous human rights violations. The Government should introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases. Furthermore, every effort must be made to ensure that the initial decision-makers and the FTT make the best possible decisions when cases are before them, thereby limiting the need for asylum seekers to rely upon a third opportunity to have their application for permission to appeal considered.
37 Tribunals, Courts and Enforcement Act 2007, s.11(1). Sub-section 11(5) provides a lengthy definition of an “excluded decision”, which includes a power for the Lord Chancellor to add further excluded decisions by order.
41 Paragraph (2) of the proposed new s.11A.
42 Paragraph (3)(b) of the proposed new s.11A
43 We note that the Law Society of Scotland have questioned the Government’s conclusion that the Legislative Consent Convention (that the UK parliament “will not normally legislate with regard to devolved matters without the consent” of the devolved legislatures) does not apply to the abolition of Cart/Eba judicial reviews. The Scottish Parliament does not have the power to modify the law relating to reserved matters (Sch 4, para 2(1) of the Scotland Act 1998), but that provision only applies to the rules of judicial review (part of Scots private law under s.126(4)) insofar as the rule in question is “special to a reserved matter” (Sch 4, para 2(3)). The Supreme Court has held that a general rule which applies to both reserved and devolved matters is not “special to a reserved matter” (Martin v Most  UKSC 10). The rule established in Cart/Eba that unappealable decisions of the Upper Tribunal may be subject to judicial review is not a rule which is special to reserved matters because it currently applies to devolved and reserved tribunals alike. It thus appears that it would be within the competence of the Scottish Parliament to modify that general rule for both reserved and devolved matters.
Clause 2 of the Bill, effectively reversing the Cart/Eba judgment, would therefore not modify a rule of Scots law which is ‘special to a reserved matter’. Instead, it would create such a rule, because it would introduce a difference in the amenability of reserved and devolved tribunals to judicial review in Scotland. In the view of the Law Society of Scotland, this engages both limbs of the Legislative Consent Convention: 1) it relates to a matter which is currently within the competence of the Scottish Parliament; and 2) it has the effect of narrowing the future competence of the Scottish Parliament by creating a rule special to a reserved matter which the Parliament will not in future be able to modify. See the Law Society of Scotland, Second Reading Briefing on the Judicial Review and Courts Bill, August 2021, pp8–9.
44 Paragraph (4) of the proposed new s.11A
45 Joe Tomlinson and Allison Pickup, Putting the Cart before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews, U.K. Constitutional Law Blog, March 2021
46 We note that other stakeholders and academics have conducted their own statistical analyses and suggested success rates in Cart JRs of up to 7.6% (Micolaj Barczentewicz, ‘Should Cart Judicial Reviews be Abolished? Empirically Based Response’, UKCLA, 5 May 2021)
47 Law Society of Scotland, Second Reading Briefing on the Judicial Review and Courts Bill, August 2021
48 According to the Government’s Civil justice statistics quarterly, October to December 2020 (Civil Justice and Judicial Review data file): 5,870 judicial review applications since 2012 are labelled “Cart – immigration” while just 423 judicial review applications are labelled “Cart – other”.
49 Article 13 ECHR also guarantees persons with a viable Article 2 or 3 claim an effective possibility of challenging an expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum (see for example, Moustahi v France (Application No. 9347/14).
50 Government Consultation on The Independent Review of Administrative Law; Response on behalf of the Constitutional and Administrative Law Bar Association (ALBA), 20 April 2021, paras 34–37. In para 37, ALBA contrast this time limit with the 14 days from receipt given to the Upper Tribunal or Interested Party (usually the relevant Government department) for the far less complex task of indicating whether or not they consider a substantive hearing should be held.
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