New Plan for Immigration legislation forthcoming and scrapping of Cart judicial review applications considered
Queen’s Speech announces new legislation that would bring major changes to the asylum system and to judicial reviews
11 May 2021
The Government has set out its programme of legislation for the year ahead in today's Queen's Speech.
The speech confirmed that the Government will bring forward legislation to deliver its controversial New Plan for Immigration, which would see major reform of the asylum system, including proposals to discriminate against asylum seekers who come to the UK by irregular routes such as by boat. A consultation on the Plan has only recently closed, however, and the Government has yet to respond.
Reforms to judicial review are also afoot, though this is subject to the outcome of another consultation, with the Government confirming that it is considering laying legislation that would see Cart judicial review applications discontinued. See our piece from March here for background.
As we reported in March, the Government favours scrapping Cart judicial reviews as it was recommended by the Independent Review of Administrative Law (IRAL) Panel, led by Lord Faulks. While the Panel found a success rate of just 0.22% for Cart judicial reviews, this figure was calculated using unusual methodology and faced criticism for being incorrect.
A recent empirical study by Dr Mikołaj Barczentewicz, Senior Lecturer in Law at the University of Surrey, estimates that the true rate of positive results of Cart judicial reviews for 2017-2019 actually lies somewhere between 2.3% and 9.2%, perhaps close to 7.6%. You can read more about the study in a blog post here and you can download it from here.
For further information on the forthcoming legislative changes announced today, you can read the sections on immigration and judicial review from the Queen's Speech background briefing notes reproduced below:
THE QUEEN'S SPEECH 2021
Prime Minister's Office
10 Downing Street
11 May 2021
New Plan for Immigration Legislation
"Measures will be brought forward to establish a fairer immigration system that strengthens the United Kingdom's borders and deters criminals who facilitate dangerous and illegal journeys."
The purpose of the Bill is to:
● Support the delivery of our New Plan for Immigration which will increase the fairness and efficacy of our system so that we can better protect and support those in genuine need of asylum.
● Deter illegal entry into the UK, breaking the business model of criminal trafficking networks and protecting the lives of those they endanger.
● Enable those with no right to be here to be removed more easily from the UK.
The main benefits of the Bill would be:
● Delivering the most significant overhaul of our asylum system in decades - a new, comprehensive, fair but firm long-term plan.
● Continuing our proud record of helping those facing persecution, oppression and tyranny.
● Taking down the criminal networks responsible for trading in human misery, putting lives in danger, and smuggling vulnerable people, as well as reducing the numbers of people entering the UK illegally.
● Increasing the removal of those with no right to remain in the UK, including foreign national offenders.
The main elements of the Bill are:
● Ensuring our system does not reward those who enter the UK illegally and that those who have travelled through a safe country where they could have reasonably claimed asylum, such as France or Belgium, will not be admitted into the UK asylum system.
● Ensuring that for the first time, whether people enter the UK legally or illegally, will have an impact on how their asylum claim progresses, and on their status in the UK if that claim is successful.
● Creating a new and expanded 'one-stop' process to ensure that asylum, human 92 rights claims and any other protection claims are made and considered upfront at the very start of the process, ending the cycle of limitless appeals.
● Ending the use of hotels and moving towards reception centres for asylum seekers so they have simple, safe and secure accommodation to stay in while their claims are processed.
● Correcting historical anomalies in British Nationality law which have long prevented individuals from gaining British citizenship or registering for citizenship, through no fault of their own.
Territorial extent and application
● The provisions in the Bill will extend and apply to the whole of the UK.
● In 2019 UK asylum applications increased by 21 per cent on the previous year to almost 36,000 – the highest number since the 2015-16 European 'migration crisis'.
● In 2019 there were just over 32,400 attempts to enter the UK clandestinely prevented at the juxtaposed controls located in France; and over 16,000 detected illegal arrivals to the UK.
● In 2019 around 62 per cent of asylum claimants to the UK had entered the country illegally (40 per cent clandestinely, 22 per cent without relevant documentation) with the remainder largely thought to have arrived regularly (on a visa before subsequently applying for asylum).
● The asylum system is costing the taxpayer over £1 billion a year.
● By the end of 2020, 52,000 asylum claims were awaiting an initial decision, with 109,000 cases in the system overall.
● In 2019, returns from the UK decreased to just over 7,000 (7,192), 22 per cent lower than the previous year, continuing a downward trend since 2013.
● The new Hong Kong BN(O) Visa:
o On 31 January 2021, the UK launched a new, bespoke immigration route for British National (Overseas) status holders and their immediate family members.
o Those with British National (Overseas) status in Hong Kong and their eligible family members are able to come to the UK to live, study and work in virtually any capacity, on a pathway to citizenship. After five years in the UK, they and their family members will be able to apply for settlement, followed by citizenship after a further twelve months.
o The route is already a success with approximately 27,000 applications received as of 19 March 2021.
o Our central estimates of those who will take up this offer range between 123,000 and 153,700 people coming in the first year and between 258,000 and 322,400 over five years.
Judicial Review Bill
"My Government will strengthen and renew democracy and the constitution. Legislation will be introduced to…restore the balance of power between the executive, legislature and the courts."
The purpose of the Bill is to (subject to the outcome of the consultation):
● Introduce reforms to Judicial Review to protect the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose – which is to hold the Government and public authorities to account, apply the intent of Parliament, and protect individuals' rights.
The main benefits of the Bill would be (subject to the outcome of the consultation):
● Giving the courts the power to suspend quashing orders in Judicial Review cases, so as to allow defects to be remedied. This will enable the courts to have more flexibility in Judicial Review cases. This may help ensure that, for example, a large infrastructure project is not delayed because an impact assessment has not been properly done.
● Reversing the Cart judgment, (whereby certain decisions of the Upper Tribunal became reviewable by the High Court) which will increase the efficiency of the courts and tribunal system and clarify the status of decisions of the Upper Tribunal. An additional effect will very likely be to reduce delays in the immigration and asylum system.
The main elements of the Bill are (subject to the outcome of the consultation):
● Allowing for the court's use of Suspended Quashing Orders in Judicial Review cases. The court would be able to suspend, for a specified time, the effect of an order quashing (thus rendering no legal effect) a decision or action. This gives the public authority time to rectify the identified errors. If the errors are not rectified within the specified timeframe, the quashing order would become effective.
● Reversing Cart. The Cart judgment made certain decisions of the Upper Tribunal reviewable by the High Court. This has given rise to numerous spurious cases challenging Upper Tribunal decisions. We are considering this proposal in light of ongoing evidence analysis.
Territorial extent and application
● The Bill will extend and apply UK wide, with the majority of the provisions likely to apply to England and Wales.
● Since the decision in R (on the application of Cart) v the Upper Tribunal  UKSC 28, there are around 700 'Cart Judicial Reviews' per year. A Cart Judicial Review is a case where a claimant, whose claim has been rejected by the First-tier Tribunal and had permission to appeal refused by the First-tier Tribunal and the Upper Tribunal, brings a challenge against the Upper Tribunal in the High Court. We are investigating how many of these cases result in a successful outcome for the claimant.
● The courts have previously considered introducing Suspended Quashing Orders but found no common law basis to do so. Such orders (if available and used by the court) could have provided the opportunity for more flexible remedies for the claimant, defendant and individuals.