M, R (on the application of) v Immigration Appeal Tribunal & Anor

Where Parliament provides a statutory alternative to judicial review, the court may decline judicial review if that alternative gives adequate and proportionate protection for the rights at stake. The assessment may take account of Parliament’s legitimate objective, including the expeditious determination of asylum claims, but must remain consistent with the rule of law.

A paper review by a High Court judge may be sufficient when it forms one part of a wider appellate process and is directed to identifying an arguable error of law. The restriction applies only to issues which were, or could have been, raised by statutory review. Judicial review remains available in principle for justiciable errors outside that remedy.

The appellants were asylum applicants whose claims had been refused by the Secretary of State and then by adjudicators. The Immigration Appeal Tribunal refused each appellant permission to appeal on a point of law.

Each appellant pursued, or had available, statutory review of that refusal under Nationality, Immigration and Asylum Act 2002. Statutory review was determined on written submissions and carried no appeal. Both also sought judicial review of the same refusal. Collins J dismissed their claims as an abuse of process: [2004] EWHC 588.

The conjoined appeals asked whether the Administrative Court should exercise judicial-review jurisdiction where Parliament had supplied a paper-based statutory alternative, and whether refusing judicial review was incompatible with article 14 of the Convention.

1. Appeals dismissed. The court accepted that section 101 of the Nationality, Immigration and Asylum Act 2002 did not remove the High Court’s judicial-review jurisdiction. It nevertheless upheld the discretionary refusal of judicial review where the challenge was coextensive with statutory review.
2. Judicial review is a remedy of last resort. In deciding whether an alternative remedy is satisfactory and proportionate, the court may consider Parliament’s purpose in creating it. The need to determine asylum claims expeditiously was a legitimate objective. That consideration could not, however, justify declining judicial review if statutory review failed to provide a satisfactory safeguard for a person who might be entitled to asylum.
3. The statutory regime was adequate when assessed as a whole. An asylum claim had been considered by the Secretary of State, an adjudicator and a legally qualified member of the Immigration Appeal Tribunal. Statutory review by an experienced Administrative Court judge was designed to identify an arguable legal error in the refusal of permission to appeal. The paper-only restriction operated at that limited stage. Oral submissions were unlikely materially to improve the presentation of the focused question whether an arguable point of law existed.
4. The availability of the alternative remedy is assessed objectively. The court’s conclusion was confined to cases in which the judicial-review application raised issues which had been, or could have been, raised on statutory review. Judicial review remained open in principle for justiciable errors not susceptible of statutory review.
5. For article 14, the court accepted that Convention rights were at least arguably within the ambit of the cases and that asylum and immigration applicants had a relevant status. It held that they were not necessarily analogous to persons challenging other tribunal decisions. In any event, the procedural difference was objectively justified by their distinct legal position and by the adequacy of the statutory safeguards.

• Court of Appeal (Civil Division): Dismissed the conjoined appeals and upheld the discretionary refusal of judicial review: [2004] EWCA Civ 1731.
• High Court, Administrative Court (Collins J): Dismissed the judicial-review claims as an abuse of process because statutory review was an available alternative remedy: [2004] EWHC 588.
• Statutory review: The appellants’ applications for review of the Tribunal’s refusals of permission to appeal were dismissed. One was determined by Goldring J; the other was determined by Collins J.