This blog post is based on a talk given by Lisa at the Westminster Legal Policy Forum on Judicial Reviews on 15 July. The Westminster Legal Policy Forum aims to provide an environment for policymakers in Parliament, Whitehall and government agencies to engage with key stakeholders in timely discussion on public policy relating to the law and the judicial system.
Given the legal expertise in the room I’m not going to be foolish enough to attempt to go over the technical aspects of judicial review. Instead what I’m going to do is share a few examples of the vital, often lifesaving role that judicial reviews have played in the lives of those that we work with: people seeking asylum or other immigration status and their families, friends, communities supporting them.
Judicial review’s vital role
The first example: the woman seeking asylum who with help from her friends and some activists carefully gathers hundreds of pages of relevant evidence showing she’s at risk of political and sexual violence in Cameroon. She submits this evidence as further submissions to be considered as a fresh claim for asylum. Within a matter of a few working hours the Home Office reject her submissions, saying it doesn’t meet the fresh claim criteria. She does not have the right to appeal this decision, her only recourse is judicial review.
Or the gay man from Pakistan, a very dangerous place to be gay, whose asylum case is refused and certified meaning there is no right of appeal. His legal option at that point to avoid removal to terrifying treatment and maybe even death? Judicial review.
Or foreign national ex-offenders from the Democratic Republic of Congo, who about six weeks ago were supported by case law to show that if they were removed to the Congo then their Article 3 rights would have been breached because they would have been detained for lengthy periods in inhuman conditions. Now following a new case and the Home Office guidance their cases are likely to be certified with no right of appeal, with yet again judicial review the only option.
Or the torture survivor who shows the scars of their torture to the doctor in detention but is still detained unlawfully, a grave abuse of the rules governing detention, the only way to get compensation for this abuse, judicial review.
Or a case from just a few weeks ago, Raja Khouja, who is a Syrian women rights’ campaigner facing removal to Saudi Arabia where she has been denounced by the Committee for the Promotion of Virtue and Prevention of Vice and had received several death threats. What stopped her being put on the removal flight and allows her case to continue to establish protection in the UK? An injunction.
Or the father who is refused permission to appeal at the Upper Tier Tribunal despite his First Tier Tribunal judgment erring in law in consideration of his right to be in the UK and look after and bring up his child, his British child, who has learning and behavioural difficulties.
Or the countless people trying to exercise their legal right to stay in the UK but whose cases no longer generate a right of appeal.
All forced to seek remedy through judicial review.
Reducing the quality, not quantity.
Right to Remain provides resources and information about trying to navigate the asylum and immigration system and we also provide training to people who are going through the system and their supporters to try and understand the system better. We are always asked about judicial reviews. Our training explains this is one of the most complicated areas of law and there can be very negative consequences as a result of a poor judicial review application.
That isn’t going to stop people applying for judicial review. If we want to look at the very high increase in the number of asylum and immigration judicial reviews, we have to look both at the removal of appeal rights and we also have to go back and look at the quality of decision making by the Home Office and by the Courts. If decision making was improved, judicial review wouldn’t be necessary in many cases.
Cutting legal aid to judicial reviews isn’t going to reduce the quantity of judicial reviews. People are applying for judicial reviews because they have no other option and in many cases they see it as a way of saving their life. The cuts to legal aid and the increasing barriers to people being able to apply to judicial review is merely going to result in decreased quality of applications and less people able to access justice.
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