176-page empirical report authored by Professor Robert Thomas and Dr Joe Tomlinson
The Nuffield Foundation today published a welcome and very comprehensive new academic report on immigration judicial review. It should prove to be of considerable interest to members and readers of EIN.
The report is authored by Robert Thomas, Professor of Public Law at the University of Manchester, and Joe Tomlinson, Lecturer in Public Law at King's College London and Research Director of the Public Law Project.
You can access the 176-page report here on Google Drive.
Immigration is the single largest area of judicial review (with 12,000 applications lodged in 2017 when the authors began their research, though in decline since then) and the report investigates how the immigration judicial review system is operating in practice. It presents empirical evidence as to the types of immigration decisions challenged by way of judicial review.
The authors explain: "We collected data on the types of immigration judicial review claims and the views and experiences of people involved in the system. Our approach to the research was to collect both quantitative and qualitative data. We then combined the data gathered through these methods to inform our analysis. Our data included case-file analysis of Upper Tribunal judicial review cases and interviews with judges, representatives, users of the system, and others. We also undertook observations."
Separate chapters of the report look at the quality of judicial review claims and of Home Office decision-making, the types and categories of immigration judicial reviews, claimants and costs, and the current, future and comparative approaches to the operation of immigration judicial review.
The report finds judicial review is an important remedy, but its scope is relatively limited and the majority of immigration judicial review claims are refused permission to proceed, despite concerns about the quality of initial Home Office decisions.
Claimants in immigration judicial reviews were frequently found to be "desperate" and the process was difficult to understand and stressful for them. Most, though not all, claimants are legally represented, but very few are in receipt of legal aid.
Underrepresented claimants are a cause for concern, with the report noting: "We encountered concerns about the ability of litigants in person to navigate the system effectively. The judicial review process was not designed with litigants in person in mind and there is accordingly a need to address the situation of litigants in person by, for instance, greater provision of guidance. The Upper Tribunal is fully aware of this challenge. Greater understanding of the process would be assisted by more and better data on costs and how these drive the behaviour of litigants."
It further noted: "From both the case-file analysis and interviews, it was clear that the central issue is not solely whether a claimant is represented, but also the quality of such representation. There were examples of cases in which formulated and precise grounds were advanced and, in some instances, judges expressly recognised the work lawyers had put into the case. At the same time, there was evidence of standard grounds of challenge and of poor quality representation."
One of the concerns highlighted by the authors is the use of generic grounds of challenge: "The low-quality preparation of many immigration judicial reviews is evident from the frequent use of template or standard grounds of challenge that have been recycled (cut and paste) from other immigration judicial reviews. Such grounds of challenge typically contain standard paragraphs concerning the law on fresh asylum claims, certification, the application of Article 8 ECHR and relevant case-law. However, they typically provide very little, if any, detail on the specific facts and circumstances of the individual claimant's personal situation and why the challenged decision was arguably unlawful, unreasonable, or procedurally unfair. Other grounds of challenge are often discursive and repetitious. They repeat the same case-law, but do little to relate this law to the specific facts and circumstances of the individual case."
The authors are also keen to point out, however, that they found many cases in which the grounds of challenge had been prepared with care and attention and had been carefully tailored to the circumstances of the specific case. Such cases were found to have a much higher chance of success than those in which standard grounds were used.
The report recommends that representatives who make use of standard, formulaic grounds of challenge need to undertake better preparation of judicial review claims.
Robert Thomas and Joe Tomlinson also find that issues concerning quality equally arise in relation to the Home Office and its decision-making. Home Office decisions can be of variable quality and there are concerns that decisions sometimes follow a standard template and use copied and pasted paragraphs.
The report states: "Examples of problematic decision-making by the Home Office included the following errors: failing to exercise discretion or not exercising discretion properly; not applying the relevant immigration rules properly; non-compliance with an earlier judicial review ruling; failing to follow and apply country guidance; not considering relevant evidence; and not giving the claimant a fair opportunity to clarify concerns. A common theme in all of the examples of problematic Home Office decision-making is the failure to undertake the proper type of detailed consideration required to make a robust and defensible decision, especially when the case has complex factual, legal, and country guidance issues."
Some 20 per cent of the cases examined by the authors were settled out of court with agreement that the case be reconsidered by the Home Office.
Another concern was "repeat judicial reviews" whereby a second judicial review is lodged against a fresh Home Office decision which is very similar to the initial decision.
One representative interviewed for the report said: "A big problem in judicial review, in my experience, is that the Home Office say they're going to reconsider and then just make the same decision again. Exactly the same. It's sometimes bordering on an abuse of process. In the second refusal letter they will change a couple of paragraphs, sometimes they won't even change a couple of paragraphs, but they will just change the date. So, that's a disadvantage of the wider judicial review process."
In its overall conclusion, the report finds: "The evidence shows that judicial review is an important remedy for challenging the legality of administrative decisions. In many instances, it is a claimant's last chance to vindicate their rights and provides an important safeguard against injustice. However, this report has also demonstrated that the process is under strain in a number of respects. The system is a largely one centred on the permission stage, with substantive disputes being rare. Claims are of various quality. Many claims contained standard and formulaic grounds of challenge are refused permission because the Upper Tribunal decides that they are unarguable. The quality of representation varies drastically, with instances of poor representation being common. At the same time, there is also evidence that initial Home Office decisions, and the processing of judicial review claims by both the Home Office and the Government Legal Department, could be enhanced. More effective communication between the parties could improve the effectiveness of the overall judicial review process.
"It is clear from our analysis there is no 'magic bullet' reform which will lead to less litigation and more justice. Issues we have identified within the judicial process usually have complex causes and are interlinked. Furthermore, many of the difficulties that appear in the judicial review process are manifestations of much wider problems outside of the process, such as flaws in initial decision-making. Improvement, therefore, is likely to be attained by incremental changes which are tested and reviewed when implemented."
Based on their research, Robert Thomas and Joe Tomlinson make 16 recommendations, and they are worth reading in full:
"1. Representatives that make use of standard, formulaic grounds of challenge need to undertake better preparation of judicial review claims.
"2. There are a variety of mechanisms to deal with vexatious claims: the Upper Tribunal's internal reporting system; deeming claims to be Totally Without Merit; Hamid hearings; and referrals to regulatory bodies. The recent reduction in the number of judicial review claims may be in part attributable to greater use of these mechanisms. The most effective way of seeking to reduce the number of hopeless judicial review claims is to reduce the levels of poor quality representation by pulling up those firms that lodge abusive and vexatious claims.
"3. Most judicial review challenges are refused permission. We encountered many robust Home Office decisions. At the same time, there were also cases in which the Home Office decision was not robust and sustainable. Better initial decision-making requires that the Home Office learns lessons highlighted through the judicial review process. Better feedback mechanisms could be put in place to achieve this.
"4. More involvement of legally trained staff, such as tribunal caseworkers, at the Pre-Action Protocol stage could increase the efficiency of the process if it leads to fewer cases being conceded at later stages of the judicial review process.
"5. The process of settling claims through a consent order could operate more efficiently if there was improved communication between the parties throughout the process.
"6. Repeat judicial reviews can be unnecessary, inefficient, costly, and likely to cause anxiety to claimants. To reduce the risk of this, the Home Office needs to exercise greater care when re-taking a decision so as to prevent further litigation. Fresh Home Office decision letters following a successful or conceded judicial review should be checked, if necessary by senior case-workers, to ensure compliance with the consent order or a ruling from the Upper Tribunal. Furthermore, when a consent order is agreed, then both parties need to fulfil their obligations. Further judicial reviews against the Home Office to ensure compliance with consent orders are wasteful and should be unnecessary.
"7. HMCTS should routinely collect data on the types and categories of immigration judicial reviews, including on costs.
"8. The Home Office's power to certify cases as clearly unfounded should be exercised carefully and only when appropriate. There may be a need for further guidance for decision-makers on this point.
"9. Parliament and the Government ought to consider whether to re-introduce appeal rights in certain categories of case, such as: human trafficking; statelessness; and domestic violence cases. Arguably, such cases could be better handled through the appeals system than judicial review.
"10. Litigants in person need more support throughout the judicial review process. This could be provided through a combination of leaflets, online guidance, videos, and digital assistance.
"11. The process for applying for Exceptional Case Funding needs to be more accessible and proportionate. Further improvements are required beyond those already implemented.
"12. There is a need for a detailed review of how costs operate in practice drawing upon data from the Home Office and the Government Legal Department. This review could examine more detailed information as to costs with a view to reaching a better understanding of costs in this area and how costs influence behaviours.
"13. Consideration should be given as to whether other types of immigration judicial review work could be usefully transferred from the Administrative Court to the Upper Tribunal, such as nationality cases.
"14. Given that tribunal caseworkers are now exercising some powers and roles previously undertaken by judges, it is necessary to ensure that there is appropriate monitoring and oversight.
"15. The Ministry of Justice and HM Courts and Tribunals Service should disclose more information about the digitalisation project, the principles informing its design, the broader direction of travel, and the timeline for implementation. It needs to be clarified whether litigants in person will be provided with digital assistance and the scope of this assistance.
"16. Rather than introducing an alternative dispute resolution (ADR) mechanism, it would be more effective to enhance the quality and efficiency of existing processes. This could include: improving the Pre-Action Protocol process and encouraging better communication between the parties before oral permission and substantive hearings."