The government has committed to scrapping Cart judicial review and is consulting on other changes to JR as part of its response to the report of the Independent Review of Administrative Law, both of which were published today. The abolition of the Cart procedure, which effectively gives people a second bite of the cherry in immigration appeals, will remove a significant supervisory check on Upper Tribunal judges.

Background: the Independent Review of Administrative Law

Judicial review allows government decisions to be challenged in court. The merits of the decision is not supposed to be up for discussion; the judge is assessing whether the decision was made lawfully. It is particularly important in immigration and asylum cases, which according to the report account for “up to 90% of judicial review applications”.

The Independent Review was set up last summer. The government spoke about “making sure the [JR] process is not abused or used to conduct politics by another means”, although the specific terms of reference for the Review panel — led by former government minister Lord Faulks QC — were more specific.

If ministers nevertheless hoped to elicit a general condemnation of overmighty judges as “enemies of the people”, they will be disappointed. The report acknowledges the growth in the scope of judicial review, and the number of applications, over the past 50 years or so. But it points out that this is because “Parliament has, for the most part, largely left it to the judges to define the boundaries of judicial review”, and that case numbers are no higher than in the 1990s (and seem to be falling). Parliament is sovereign and can always legislate to overturn individual rulings it doesn’t like. The report’s concluding observations include:

The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers… Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.

Or, as David Allen Green more caustically puts it:

The government set up a commission in the hope and expectation that the recommendations would be a sweeping attack on judicial review

And…

….the report appears to largely support the current position

Which is not what the government wanted

Whoopshttps://t.co/mffkPGvBhJ

— davidallengreen (@davidallengreen) March 18, 2021

The government is therefore consulting on changes that go beyond the firm recommendations of the report. Only the first two of the 19 consultation questions address the report’s recommendations. The rest “build on the analysis in the Report” or address options that were canvassed but not positively recommended by the panel.

Abolishing Cart: “may cause some injustice”

The Cart procedure allows decisions of the immigration tribunals to be judicially reviewed. Specifically, a decision of the Upper Tribunal to refuse to hear an appeal from the First-tier Tribunal can be challenged in the High Court (and then potentially the Court of Appeal). If the court decides to quash the refusal of permission to appeal, the case goes back to the Upper Tribunal to decide the appeal it had initially refused to hear. The procedure is named for the Supreme Court decision in Cart v The Upper Tribunal (Rev 1) [2011] UKSC 28. In Scotland, it is named instead for the directly equivalent decision in Eba v Advocate General for Scotland [2011] UKSC 29.

This undoubtedly introduces more complexity into immigration appeals. As the Justice Secretary put it in the House of Commons today:

In such an appeal, the Court of Appeal is essentially asked whether it thinks that the proposed appeal against the High Court’s refusal to grant permission to judicially review the Upper Tribunal’s refusal to grant permission to appeal the First-tier Tribunal’s decision should be allowed. [Dramatic pause] 

But in creating the Cart/Eba jurisdiction, the Supreme Court was recognising (in Lord Phillips’s words) “the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system”. 

The report finds that this concern is no longer warranted. Of the 5,500 Cart judicial review applications recorded between 2012 and 2019, there are only 45 reports/transcripts available, of which just 12 involved the appeal eventually succeeding. That represents a success rate, as it were, of just 0.22%. (Incidentally this explains the bizarre press reports in recent days claiming that only 12 immigration-related JR had succeeded in total since 2012: a garbled reference to the success of Cart JRs specifically.)

The report’s statistical analysis rests on the premise that all successful Cart cases are reported on either Westlaw or Bailii, which isn’t obvious. It seems intuitively much more likely that the record of judgments is incomplete than that so few cases have succeeded: Colin remembers winning at least one, and Alasdair MacKenzie four, which would leave just seven for the rest of the nation’s immigration lawyers. The Law Society also points out that “the much larger number of cases where settlement is achieved only under the threat of judicial review… are not reflected in the panel’s figures”.

But the government has already accepted the panel’s recommendation that Cart be overturned by Act of Parliament, so we are where we are. It accepts that abolition “may cause some injustice”. 

Interestingly this issue was not part of the panel’s terms of reference and was smuggled into their deliberations at the request of judges (see paragraph 10 of the report).

It appears that the procedure will not be scrapped in Scotland — i.e. it is only Cart that would be reversed, not Eba — although the language of the consultation document (see foreword and paragraph 59) and the Justice Secretary in Parliament (see reply to Stuart McDonald here) is maddeningly ambiguous and it is possible that the intention is the complete opposite.

Other changes

The rest of the government’s proposals are not specific to immigration but will repay careful study by practitioners and their representatives given that the bulk of judicial review work is made up of immigration and asylum cases.

The government has committed to legislating for the introduction of suspended quashing orders. This would “alleviate the bluntness of a quashing order” such that a government decision would be quashed only “if, after a certain period of time, certain conditions set down by the court have not been met”. The consultation asks how exactly suspended quashing orders should work, but the decision to introduce them in principle has been made.

The consultation paper also indicates that the government agrees with the following recommendations of the Independent Review:

Changes in procedure to be considered and taken forward by the Civil Procedure Rule Committee (CPRC):

i. removing the requirement for a clam to be issued “promptly”, but retaining the 3-month time limit

ii. providing further guidance on intervenors

iii. providing for an extra step in the procedure of a Reply, to be filed within seven days of receipt of the Acknowledgement of Service

The rest of the consultation focuses on ideas that the government is interested in exploring but is not yet committed to. These are summarised under six headings:

a. legislating to clarify the effect of statutory ouster clauses

b. legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis

c. legislating that, for challenges of Statutory Instruments, there is a
presumption, or a mandatory requirement for any remedy to be prospective only

d. legislating for suspended quashing orders to be presumed or required

e. legislating on the principles which lead to a decision being a nullity by operation of law

f. making further procedural reforms (which would need to be considered by the CPRC)

These are explored further in questions 3-19 inclusive of the consultation, which closes on 29 April 2021.