I, too, will focus my comments on the first part of the Bill, which concerns judicial review. I support the exclusion of upper-tribunal permission decisions from the ambit of judicial review—the so-called Cart decisions. That is a merit-based argument. Briefing notes I received state that removing the option of recourse to judicial review in immigration risks injustice, and I hope Members will not mind if I set out briefly why I do not think that is the case.
It is important to note what clause 2 on Cart decisions does not do. It does not mean that difficult immigration or asylum cases will not end up in the appeal courts. It is the case now, and will remain the case, that the most difficult cases concerning article 3 rights on freedom from torture, and article 2 rights on the right to life, are nearly always adjudicated in the Court of Appeal. That is because they have made a natural progression from the first tier to the upper tier and the Court of Appeal. All the clause does is deal with permission to appeal.
The clause gives the applicant first the opportunity to go to the first-tier tribunal and seek permission to appeal, with the threshold being whether the case is reasonably arguable. They fail that. They go to the upper-tier tribunal and again say that they have a case that is reasonably arguable. That is refused. They then go to the High Court and seek judicial review. It is only that upper layer that is being removed.
In no other area of law, in either the private or the public realm, does the applicant have three bites of the cherry—not in employment law, not in family law, not in education law, community care, or local government. You cannot leapfrog a decision of the upper court or tribunal to seek recourse through another means. I have listened carefully to the arguments made by those on the Opposition Benches, and no one has yet defined why immigration, and immigration alone, should belong in a special category where people have an extra bite of the cherry.
The hon. Member for Bath (Wera Hobhouse), who is no longer in her place, suggested that it goes against every fair-minded decision of a Government to exclude Cart-type judicial reviews, but that overlooks the difficulty that the Supreme Court had when it determined this issue. Indeed, I say respectfully that it is rare to find such a nuanced decision in the Supreme Court. In the course of that judgment, at paragraph 91, Lord Phillips said:
“My initial inclination was to treat the new two tier tribunal system as wholly self-sufficient… Can it not be left to the Senior President…to ensure that the tribunal judiciary is so deployed as to ensure the appropriate degree of judicial scrutiny of decisions of the lower tier?”
Even Baroness Hale, who was the primary proponent, said:
“There must be a limit to the resources”
that we
“devote to the task of trying to get the decision right in any individual case.”
We on the Government Benches respectfully say that it must be right that, if the Supreme Court were faced with that decision again, it would answer in a different way. We know that because of Lord Hope’s remark in the Lords on 22 March that
“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]
The other reason I support clause 2 is to do with the overriding objective that lies at the heart of all civil procedure and the issue of proportionality. I know that there has been some disagreement among Members about how many Cart judicial reviews succeed. The independent review of administrative law report put it as low as less than 1%, the Government say it is 3%, and Liberty, which argues strongly in favour, says it may be nearer 5%. However, we have to be realistic. On any reading, we have a system where over 95% of these judicial review cases go nowhere, yet we know that that is the most common form of judicial review.
That is exactly what Lord Dyson warned against when permission was given in Cart. He said that “resources are limited” and that we do not want
“a return to the pre-2002 Act days in immigration and asylum cases when the courts were overwhelmed with unmeritorious judicial review claims.”