Judicial Review Immigration - Upcoming changes

To understand the reason why the Prime Minister wants to restrict access to the courts in terms of judicial reviews and how this may impact judicial review immigration in the UK, first, we must address the question – what is a judicial review? And also say a little about this important legal process and the August 2019 prorogation of Parliament.

What is a judicial review?

Many people in the UK ask the question, what is a judicial review? A judicial review is a type of court proceeding whereby a judge reviews the lawfulness of a decision or action made by a public body. It is thus a challenge in the way a decision has been made, where no fresh evidence is permissible, but the review is made on the evidence that led to the decision being contested. The main issue for the tribunals and higher courts is whether a reasonable decision-maker would have arrived at such a conclusion.

The prorogation of Parliament in August 2019

On 28th August 2019, the Parliament of the UK was ordered to be prorogued (discontinued) for five weeks, by the Queen on the advice of her Prime Minister, Boris Johnson. Gina Miller a British national and a businesswoman funded and brought judicial review proceedings against the decision to prorogue on the basis that democracy would be undermined if the UK government could take executive decisions without the checks and balances of the courts and the scrutiny of Parliament. Thus on the 24th September 2019, the Supreme Court, ruled on two questions as regards an order to prorogue, first was it justiciable, in other words, could the decision to prorogue be subject to the scrutiny of the courts? Second, was it legal?

The UK Supreme Court went on to find that it did have the power to rule on the question (thus it was justifiable), and that the Government’s decision to prorogue for five weeks was unlawful, and that Parliament had not in fact been prorogued.

What was the real reason for the Government’s decision to prorogue?

Many MP’s and those beyond Westminster, believed that the Prime Minister’s decision was a cynical ploy to prevent them from blocking a no-deal Brexit to the run-up to Brexit day which was then fixed for 31st October 2019. In contrast, the Prime Minister argued that the reason for prorogation was to prepare for a new parliament session, with a Queen’s speech on 14th October 2019, but it was very clear that if all went to plan as the Prime Minister hoped it would, then there would be insufficient time to debate Brexit and vote against the issue of leaving the EU without a deal as had been threatened by the Prime minister he would do if no deal was struck. Therefore as there would be no time to debate the issue, the UK would leave the EU by default on 31st October 2019 without Parliament having an opportunity to vote on the matter. The Prime Minister leading a minority government then was adamant on leaving the EU with or without a deal come what may on 31st October 2019,

The current position from an immigration perspective

Judicial review immigration in the UK, which is currently subject to change due to the prorogation is in our view and the views of so many others, due to the Government’s defeat on the issue of prorogation. It review was in the conservative party’s manifesto leading up to the snap election of December 2019 when the conservatives were returned by a substantial majority. The manifesto promised to set up a Constitution, Democracy and Rights Commission ” to examine the relationship between the Government, Parliament and the courts”.

However that the manifesto pledge is now all but broken and shelved in favour of speedier action by a new panel to examine the issue of judicial review against ministerial decisions, with a report on how the system can be reformed in an effort to speed up the process, there are plans to curb the scope and power of judicial review; but, any watering down of the current process for review could lead to ministerial decisions, such as decisions of the Home Secretary on immigration, asylum and human rights issues, avoiding scrutiny by the courts, in the same way, that the Prime Minister hoped he could act when dealing with the Brexit debate by proroguing Parliament.

There are so many instances of the Home Secretary arriving at wrong and or unlawful decisions concerning an individual’s right to remain and work in the UK, being detained or deported, and the current system of judicial reviews which may be the only other remedy a migrant may have if there are no appeal rights whatsoever or remaining, are very carefully calibrated so people cannot turn up at the courts and bring cases, however much money they may have.

Our views on Judicial Review Immigration changes

The current process of judicial reviews should not be taken away from migrants or curbed or in any way undermined, so as to effect a fair and proportionate decision by the tribunals and higher courts. The current system has procedures in place, in terms of pre-actions, submissions, permission stages that sift out the weak cases, or cases that do not meet the legal threshold.