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.