G, R (on the application of) v Immigration Appeal Tribunal

Section 101 of the Nationality, Immigration and Asylum Act 2002 does not expressly or impliedly remove the High Court’s jurisdiction to entertain judicial review of an Immigration Appeal Tribunal decision. Judicial review remains a remedy of last resort. Where statutory review is available, it will ordinarily be an abuse of process to pursue judicial review on grounds already raised, or which could have been raised, in the statutory review. Only very exceptional circumstances can justify departure from that rule. The statutory review scheme is not rendered inadequate because it is conducted on written submissions, provides no oral renewal and makes the High Court judge’s decision final. The statutory test and the wider two-tier appeal structure provide a proportionate means of correcting arguable errors of law while limiting delay.

These conjoined judicial review claims concerned refusals by the Immigration Appeal Tribunal to grant permission to appeal. In each case, a High Court judge had rejected an application for statutory review under section 101(3) of the Nationality, Immigration and Asylum Act 2002. Permission was granted in the second claim at the hearing, so that both claims could be considered together.

The claimants argued that section 101 had not removed judicial review jurisdiction and that judicial review should remain available where the Tribunal had erred in law, particularly because statutory review lacked oral renewal and a route to the Court of Appeal. The defendant argued that statutory review displaced judicial review, or that further claims should not proceed. The central issue was whether, and in what circumstances, judicial review could survive an unsuccessful statutory review.

1. Jurisdiction. The claims were dismissed. Section 101 did not contain the clearest possible words required to exclude judicial review. The High Court therefore retained jurisdiction to entertain such a claim.
2. Statutory review as the intended remedy. Parliament intended statutory review to take the place of judicial review in this context. The statutory scheme permits a single High Court judge to review an alleged error of law on written submissions. Under CPR 54.25(4), reversal requires both a possible error of law and either a real prospect of success on the appeal or another compelling reason. The judge’s decision is final, but a successful review operates as a grant of permission to appeal, and the substantive appeal may proceed through the ordinary appellate structure.
3. Alternative remedy and exceptional circumstances. Judicial review is a remedy of last resort. The court should hesitate before treating a statutory procedure introduced for a specific problem as inadequate. The absence of oral renewal or an appeal from the statutory review decision did not make the procedure less satisfactory. The approach in R(Sivasubramaniam) v Wandsworth County Court [2003] 1 W.L.R. 475 applied: bypassing the statutory scheme defeats its purpose and judicial review should be permitted only in exceptional circumstances.
4. Abuse of process. A claim for judicial review pursued after unsuccessful statutory review, on grounds which were or could have been advanced in the statutory review, is an abuse of process and should be summarily dismissed. A failure to use statutory review will also ordinarily bar subsequent judicial review. New material may require consideration, but only very exceptional matters, such as fraud, bias or similar circumstances, could realistically justify judicial review.
5. Convention arguments. Article 6 did not apply to the procedures for removal or refusal of leave to enter. In any event, Article 6 did not require an appeal or review, or an oral hearing at every stage. The regime was not discriminatory under Article 14 merely because it applied by its nature to non-nationals; the relevant question was whether the regime was fair. Both claims were dismissed without consideration of their merits.

These were first-instance judicial review claims in the Administrative Court. The judgment states that each claimant had previously failed in an application for statutory review by a High Court judge under section 101 of the Nationality, Immigration and Asylum Act 2002. The present claims were dismissed as an abuse of process.