Migrant Injustice: The ‘Cart’ Judicial Review Proposal in the Judicial Review and Courts Bill

Introduction

Cart Judicial Reviews (‘JRs’) are High Court applications for judicial review of decisions of the Upper Tribunal to refuse permission to appeal against a decision of the First-Tier Tribunal. Principally, they arise in relation to immigration appeals that concern appeals on asylum and human rights grounds from decisions made by the Home Secretary. The Judicial Review and Courts Bill proposes to oust the jurisdiction of the High Court from such decisions and end its role as the guarantor of the rule of law in that regard. What is going on?

The Role of the High Court in Cart JRs

The High Court is a court of unlimited jurisdiction. To that end it supervises tribunals established by statute, such as the immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal.  The rule of law requires that statute law be interpreted by an authoritative and independent judicial source. It is further enabled by High Court supervision of bodies such as tribunals established by statute.

The High Court’s role is not a denial of legislative sovereignty but an affirmation of it. It ensures that Parliament’s statutes are always effective and that the bodies it creates operate within their prescribed limits, see R (on the application of Cart) v The Upper Tribunal & Others [2009] EWHC 3052 (Admin), High Court, per Lord Justice Laws (paragraph 38). In England, only the High Court is a court of unlimited jurisdiction. Other courts and tribunals, having a limited jurisdiction and are susceptible to judicial review by the High Court.

The term ‘Cart JR’ arose from the 2011 decision of the United Kingdom Supreme Court in R (on the application of Cart) v The Upper Tribunal; R (on the application of MR (Pakistan)) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28 (‘Cart’), which considered the scope for such challenges.  

Notwithstanding the existence of this jurisdiction, the High Court entertains such Cart JRs only in rare cases. Further, it operates a modified, streamlined, procedure that reflects the exceptional nature of the jurisdiction.

The Judicial and Courts Bill and Cart JRs

The Judicial Review and Courts Bill (clause 2) ousts the jurisdiction of the High Court to judicially review decisions of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal. In so doing it cuts off a mode of challenge to error in an immigration appeal concerning asylum and/or human rights. It makes certain decisions of the Upper Tribunal final and stipulates that they are not subject to review by any other court.

This ouster of High Court jurisdiction will operate subject to certain, very limited exceptions:

  • where the Upper Tribunal did not have jurisdiction, whether because it did not have before it a valid application or it was not properly constituted to carry out its task; or
  • where the Upper Tribunal acts or has acted in bad faith or in fundamental breach of the principles of natural justice, such as bias or corruption.

Such exceptional cases are likely to be vanishingly rare. For all practical purposes the jurisdiction of the High Court will be ousted.

Why the Proposal is Wrong and should be Opposed

There are three reasons for opposing the proposal:

  • Cart JRs help prevent injustice;
  • The Government’s evidence justifying the measure is faulty and does not withstand scrutiny; and
  • Without need, the proposal interferes in the Constitutional order by reducing the role of the High Court as guarantor of the rule of law

First, Cart JRs prevent injustice in immigration decisions concerning asylum, risk of persecution or torture on return to a home country, and human rights. The latter includes cases concerning keeping families with children together, where one family member is liable to removal.

All of these matters concern upholding rights found in international human rights treaties (such as the Refugee Convention and the European Convention on Human Rights) that the UK has ratified and for which it has made provision in domestic law.

Cart JRs operate as a long-stop to secure the rule of law in rare and exceptional cases. The High Court’s special role in the Constitutional order is to maintain the rule of law as a constitutional imperative and to determine what the rule of law requires. It is different from other courts and tribunals in that respect.

As noted, the High Court operates a modified, streamlined procedure to regulate the use of judicial review in Cart cases; in so doing determines the scope of judicial review required by the rule of law.

There is no positive case, well-founded in evidence, to oust this role and leave no form of judicial review of these statutory tribunal decisions.

Second, the Government’s evidence justifying the measure is faulty and does not withstand scrutiny: In the Explanatory Notes to the Bill, the Government relies on faulty data to assert that the number of Cart JRs brought are high and that the success rate is low. It asserts that the success rate is around 3% (originally it said 0.22%). Not so. As the Administrative Law Bar Association (ALBA) consultation response on Judicial Review Reform (29 April 2021) notes, the true success rate is much higher. In the data used to arrive at the original Government figures, 12 cases on legal judgment websites (Westlaw and Bailii) were found to be successful. However, as ALBA note there were 45 cases reported there in total. That gives a success rate of 26.7% overall, which in turn suggests that Cart JRs performs a statistically significant role in correcting legal error.

True there are many, many more Cart JRs that are unreported. But the Government leads no evidence on the overall success rate in those cases. The burden is on the Government to justify the measure. It has not done so.

Third, without need, the proposal interferes in the Constitutional order by reducing the role of the High Court as guarantor of the rule of law. Judicial review is the principal control mechanism in public law. It was developed by the Courts themselves and not created through legislation made by Parliament. The Senior Courts Act 1981 may regulate it but it is not its source. It would survive if that Act was repealed. Judicial review is essential to the rule of law. It ensures that public authorities, including statutory immigration tribunals respect the rule of law enacted by Parliament. Regardless of any inconvenience, it is a critical constitutional protection, not to be abandoned lightly.

Against that backcloth, Parliament should not oust the supervisory jurisdiction of the High Court. As. noted, the jurisdiction is a creation of the common law and ensures that laws made by Parliament and actions of bodies created by Parliament act are consistent with the rule of law. It should be left to the High Court to regulate when it will entertain Cart JRs and when it will not. There is no case for Parliament to interfere.

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