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Chris Grayling's attack on judicial reviews is itself 'meritless' Chris Grayling's attack on judicial reviews is itself 'meritless'
(5 months later)
Chris Grayling plans to reduce the number of judicial reviews (JRs), particularly in my own field of immigration law. There are just too many of them, he feels, and now wants to "drive out" the "meritless" applications. In support of this, we have figures: 8,734 immigration judicial review applications made in 2011– but only 607 were granted permission to an oral hearing and only 31 were successful.Chris Grayling plans to reduce the number of judicial reviews (JRs), particularly in my own field of immigration law. There are just too many of them, he feels, and now wants to "drive out" the "meritless" applications. In support of this, we have figures: 8,734 immigration judicial review applications made in 2011– but only 607 were granted permission to an oral hearing and only 31 were successful.
The trouble with figures, though, is that they are not always reflective of the true situation. I contributed a number myself to that 8,734. Most didn't reach the full hearing stage, yet none were meritless. This is because the vast majority did not even get as far as the permission stage, because the UK Border Agency crumbles when faced with the sorry evidence of its own disorganisation.The trouble with figures, though, is that they are not always reflective of the true situation. I contributed a number myself to that 8,734. Most didn't reach the full hearing stage, yet none were meritless. This is because the vast majority did not even get as far as the permission stage, because the UK Border Agency crumbles when faced with the sorry evidence of its own disorganisation.
Take a recent example. My client was appealing against removal and had reached the upper tribunal stage. I got an unexpected call from a detention centre. He was being unlawfully removed before his appeal was heard. Telephone calls to UKBA yielded no result, so judicial review was the only answer. Immediately the JR was lodged, he was released with a muttered apology.Take a recent example. My client was appealing against removal and had reached the upper tribunal stage. I got an unexpected call from a detention centre. He was being unlawfully removed before his appeal was heard. Telephone calls to UKBA yielded no result, so judicial review was the only answer. Immediately the JR was lodged, he was released with a muttered apology.
A few weeks later it happened again. So, once more, we went through the formality of making telephone calls that were never returned, writing a letter before claim that was ignored, lodging judicial review proceedings. As a result, he was released to continue with his appeal, their system was finally updated to reflect his outstanding appeal – at least I assume it was, since there hasn't been a third attempt – and two more applications were consigned to the lamentably overfilled judicial dustbin.A few weeks later it happened again. So, once more, we went through the formality of making telephone calls that were never returned, writing a letter before claim that was ignored, lodging judicial review proceedings. As a result, he was released to continue with his appeal, their system was finally updated to reflect his outstanding appeal – at least I assume it was, since there hasn't been a third attempt – and two more applications were consigned to the lamentably overfilled judicial dustbin.
Those cases were technically among those Grayling regards as meritless, because they did not get as far as being granted permission. UKBA could have fought us and we would have won – but isn't it better that they do concede at the earliest opportunity?Those cases were technically among those Grayling regards as meritless, because they did not get as far as being granted permission. UKBA could have fought us and we would have won – but isn't it better that they do concede at the earliest opportunity?
These are the types of cases which immigration solicitors and barristers deal with on a daily basis. A combination of over-legislation and under-staffing at UKBA creates a toxic mix from which nobody emerges victorious. Judicial review is increasingly used to force accountability from a decreasingly accountable agency: some are compelled to fall back on judicial review simply to obtain a decision on an application made years ago.These are the types of cases which immigration solicitors and barristers deal with on a daily basis. A combination of over-legislation and under-staffing at UKBA creates a toxic mix from which nobody emerges victorious. Judicial review is increasingly used to force accountability from a decreasingly accountable agency: some are compelled to fall back on judicial review simply to obtain a decision on an application made years ago.
Ten years ago, we had fewer immigration JRs because we had fewer draconian laws. It is now possible to be "fast-tracked" through your asylum claim (only remedy: JR), to be held in immigration detention for months or even years at a time (only remedy: JR), to be refused a right of appeal (only remedy: JR), or to be refused a family visit on the strength of failing to provide documents that were never asked for (only remedy: JR).Ten years ago, we had fewer immigration JRs because we had fewer draconian laws. It is now possible to be "fast-tracked" through your asylum claim (only remedy: JR), to be held in immigration detention for months or even years at a time (only remedy: JR), to be refused a right of appeal (only remedy: JR), or to be refused a family visit on the strength of failing to provide documents that were never asked for (only remedy: JR).
This Queen of Hearts approach to legislation doesn't help. If the government insists on the "off with their heads!" attitude towards lawmaking, the judiciary are pressed into the King of Hearts role, quietly pardoning those who suffer the most arbitrary decisions.This Queen of Hearts approach to legislation doesn't help. If the government insists on the "off with their heads!" attitude towards lawmaking, the judiciary are pressed into the King of Hearts role, quietly pardoning those who suffer the most arbitrary decisions.
If Grayling genuinely wanted to reduce the number of judicial reviews, he would start first by improving the quality of UKBA decisions, then by reintroducing some discretion on the part of the caseworkers. To stamp out people's right to challenge unlawful or unfair decisions without first addressing why they are forced to do so is truly Alice in Wonderland thinking. In fact, I think it might be open to judicial review.If Grayling genuinely wanted to reduce the number of judicial reviews, he would start first by improving the quality of UKBA decisions, then by reintroducing some discretion on the part of the caseworkers. To stamp out people's right to challenge unlawful or unfair decisions without first addressing why they are forced to do so is truly Alice in Wonderland thinking. In fact, I think it might be open to judicial review.
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