Duncan Lewis

When the Tribunal has the Power of Judicial Review

Date: (19 January 2011)    |    

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It is envisaged that the Tribunal will exercises the power of the High Court when Section 15 of the Tribunal, Courts and Enforcement Act 2007 comes fully into force. There has already been considerable resistance to this idea, and we wait to see when the time is chosen. In this article we consider some of the difficulties that this might give rise to.

Currently the Upper Tribunal only exercises under certain conditions its powers under Section 15 for issues involving the Criminal Compensation Tribunal, and reviews of decisions of the first-tier Tribunal made under the new Tribunal Procedure Rules where there is no right of appeal to the upper Tribunal against the decision.

'No man shall be judge in his own cause...'

The first step envisaged in the expansion of powers is that the Tribunal, rather than the High Court, will rule on whether an application, not considered by the Secretary of State to amount to a fresh claim, raises issues that require a right of appeal. Unfortunately the tribunal has no great record in this area either. Under the previous system an Appellant who was (following an initial appeal) denied a right of further appeal (or 'reconsideration' in the parlance of the time) could bring a 'statutory review' (a review on the papers by a High Court judge). Not infrequently this resulted in a ruling that there was an issue suitable for determination on appeal after all.

Currently the High Court operates a valuable supervisory jurisdiction over the First Tier Tribunal. Will the Upper Tribunal be as ready to strike down the Tribunal's own decisions? Those with experience of the readiness (or lack of it) of the Tribunal to grant permission to appeal to the Court of Appeal will doubt this. Other than in exceptionally rare cases the Tribunal is reluctant to grant permission, even in those decisions that are eventually overturned on appeal.

The recent case of Quila [2010] EWCA Civ 1482 (see our article Paving the Road to Hell) provides a problem for the Courts in that until recently the Tribunal have been refusing entry clearance applications in line with Rule 277. What will happen to those cases that on the eve of the decision of the Court of Appeal, have been refused their final toss of the coin by the Upper Tribunal, and thus in theory have no remedy by way of either judicial review or further appeal is a difficult question. As the Tribunal takes on more of the powers of the High Court, it is likely that similar issues will arise more frequently.

Immigration practitioners will be well aware of a number of occasions where restricting access to the higher courts has been attempted in the past been attempted, and left the Government of the time red faced, when it turns out, the words "A decision of the appropriate court on an application.... shall be final."1* are not that final after all.

Interim applications are subject to challenge by way of Judicial Review, so for instance the granting of reconsideration under Section 103A (under the previous system) to the Secretary of State for the Home Department could be challenged by way of Judicial Review on the basis that the decision, most unusually, was not rationally open to the Tribunal2*

In another case, an adjournment was sought so that an Appellant would be allowed to give evidence at her own appeal; an application for Judicial Review was made and a stay of proceedings sought. This was not dealt with until after the Tribunal had promulgated its decision, the issue before the Court was could it set aside the final decision of the Tribunal. It found it could in the interests of justice do so, and thereafter the decision that followed was also struck down.3*

These examples demonstrate the value of having recourse to an alternative court, with a different perspective and perhaps less embarrassment at overturning the decisions of colleagues. The involvement of High Court judges in the Upper Tribunal is welcome, and has led to a noticeable improvement in decision making, but the fear lurks that over time the High Court judges will be subject to 'institutional capture' and become unconsciously resistant to finding flaws in their colleagues' decisions.

Finally, on a practical note:

How will the Tribunal deal with urgent applications? There is no out-of-hours service, and no clear system for expediting urgent appeals. With greater powers, the Tribunal will need to recognise its responsibilities have also increased and become more willing to take proactive steps where justice demands.


1* Nationality, Immigration and Asylum Act 2002, as amended Section 103A(6) now omitted by S.I. 2010/21
2* R oao S v Secretary of State for the Home Department and R oao S v The Asylum and Immigration Tribunal [2007] EWHC 426 (Admin)
3*R oao AM (Cameroon) v The Asylum and Immigration Tribunal and another [2008] EWHC Civ 100.