G, R (on the application of) v Immigration Appeal Tribunal [2004] EWHC 588 (Admin)

Case No CO/0103/2004Case No CO/0972/2004[2004] EWHC 588 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 25 March 2004
Strand,
London, WC2A 2LL
Before
The H on.Mr Justice COLLINS
Between
R (G)Immigration Appeal Tribunal
Between
R (M)Immigration Appeal Tribunal
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Raza Husain (instructed by TRP, Solicitors) for Claimant in ‘G’Mr Michael Fordham (instructed by The Refugee Legal Centre) for Claimant in ‘M’Miss Elisabeth Laing (instructed by the Treasury Solicitor) for Defendant
Judgment
[1]Both these claims constitute attempts to pursue a judicial review against decisions of the Immigration Appeal Tribunal (I.A.T.) refusing permission to appeal notwithstanding that a High Court judge has in each case rejected an application under s.101(3) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). I had given permission for the claim to be made in G but had rejected that in M. M was therefore listed before me as an oral renewal of the application for permission. In the course of the hearing without objection from Miss Laing I granted permission and dispensed with all procedural requirements so that each claim could be considered on the same footing.[2]I have only been concerned with the question in what circumstances, if at all, a claim for judicial review can survive s.101 of the 2002 Act. Miss Laing submits that the provision of statutory review means that the court now has no jurisdiction to permit judicial review or, if it has, it should never allow a claim to proceed. Mr Husain and Mr. Fordham submit that the jurisdiction has not been removed; indeed, it could not be in the absence of the clearest possible words and there are none here. They go on to submit that the court should, notwithstanding the rejection of statutory review, be prepared to consider a claim and, if persuaded, perhaps after oral argument, that the I.A.T. had erred in law, grant relief. They recognise that considerable weight should be attached to the rejection of the application for statutory review and that practitioners should act responsibly and with great circumspection before making any such claim. Nevertheless, since the jurisdiction continues to exist, and particularly since in this jurisdiction an error can be literally fatal and the most anxious scrutiny is required:(see Bugdaycay v Secretary of State for the Home Department [1987] A.C. 514) and observations to the same effect in many subsequent cases, judicial review should be permitted.[3]The problem of increasing numbers of asylum seekers has exercised the government over the past ten years or more and has led to a number of Acts of Parliament which have set up various systems, whether administrative or concerning appeals, to try to deal with the problem. There are among the genuine asylum seekers a very large number of economic migrants whose goal is to better themselves in this country. Thus a very large percentage of those who claim asylum are anxious to achieve as much delay as possible before their claims are finally disposed of. So long as appeals are pending, they can remain here and, since they are forbidden to work ( a prohibition which is often disregarded) they are usually entitled to at least minimum support at public expense. Furthermore, appeals and judicial reviews are usually conducted on legal aid and all too frequently by legal advisors who pay insufficient regard to whether any claim in truth has merit. Practitioners are too ready, so it is said, to provide advice which obtains legal aid in circumstances where the claims are in reality without merit. Thus any delay in the appellate system costs the country a great deal of money.[4]The government clearly believed that one of the significant causes of delay was judicial review. The process could take months since a claim, if unmeritorious, would be refused on paper and then could be renewed orally. If that renewal was rejected, there was a right to go the Court of Appeal. In the White Paper published before the 2002 Act, under the title ‘Secure Borders, Safe Haven’ (CM 5387, February 2002), delay was identified as a real problem and measures were to be introduced (as they were) to reduce such delay and to streamline both the administrative and the appellate processes. A measure then identified to seek to avoid judicial review was to make the I.A.T. a superior court of record. For a number of reasons, not least of which was a concern that such a provision would not work, that proposal was abandoned and, by an amendment tabled when the 2002 Act was going through Parliament, statutory review was introduced. There was to be a short time limit and the opportunity for any significant delay was to be removed by making the decision of the High Court judge, who would deal with the application on paper, final. It was anticipated that the whole statutory review process would normally take no more than 4 weeks, that is to say, 2 weeks to apply and a decision by the court within 2 weeks of the application being made. That anticipation has been fulfilled. It would, as must be obvious, be frustrated if claims such as these are permitted to proceed. But that is, of course, not necessarily a good answer to the claims if judicial review can and, in the interests of justice, should be allowed.[5]Section 101 of the 2002 Act reads:- “Appeal to Tribunal(1) A party to an appeal to an adjudicator under section 82 or 83, may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.(2) A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunals decision on the ground that the Tribunal made an error in law.(3) Where an application is made under subsection (2) – (a) it shall be determined by a single judge by reference only to written submissions, (b) the judge may affirm or reverse the Tribunal’s decision, (c) the judge’s decision shall be final, and (d) if, in an application to the High Court, the judge thinks the application had no merit he shall issue a certificate under this Paragraph (which shall be dealt with in accordance with Civil Procedure Rules).(4) The Lord Chancellor may by order repeal subsections (2) and (3)”. Part 54 of the CPR has been amended to cover statutory reviews which are dealt with by judges of the Administrative Court: see CPR 54.21-27. Review applies not only to refusals but also to grants by the I.A.T. of permission to appeal, although in practice it seems that grants are only likely to be attacked where the defendant has been granted permission to appeal and the appellant believes that that grant was erroneous in law. I am bound to say that the circumstances in which such grants could be tainted must be exceedingly rare since it would have to be shown that the I.A.T. should not have regarded the appeal as arguable and so that appeal would have no real prospect of success: see CPR 54.25(5). The test to be applied by the Court in the more usual application in relation to a refusal by the I.A.T. of permissions is set out in CPR 54.25(4), which provides that the Court may only reverse the decision if satisfied that:- “(a) the Tribunal may have made an error of law; and (b) either (i) the appeal would have a real prospect of success; or (ii) there is some other compelling reason why the appeal should be heard”. If the Court reverses the I.A.T.’s decision, its decision operates as a grant of leave to appeal, which the Court may limit to specific grounds. (a) it shall be determined by a single judge by reference only to written submissions, (b) the judge may affirm or reverse the Tribunal’s decision, (c) the judge’s decision shall be final, and (d) if, in an application to the High Court, the judge thinks the application had no merit he shall issue a certificate under this Paragraph (which shall be dealt with in accordance with Civil Procedure Rules). (4) The Lord Chancellor may by order repeal subsections (2) and (3)”. (i) the appeal would have a real prospect of success; or (ii) there is some other compelling reason why the appeal should be heard”.[6]As will perhaps be apparent, statutory review has some advantages over judicial review. The other party is not heard and so there is no formal opposition to the application. This means that the exercise of the duty of candour is all the more important and, if it transpires that the Court was misled by a failure to disclose a material matter and so is persuaded to reverse the I.A.T.’s decision, I have no doubt that action, whether by way of contempt proceedings or imposition of costs or a report to the relevant disciplinary body, should and would be taken. Further, the test is whether the I.A.T. ‘may have made an error of law’. Judicial review will not succeed unless the Court is persuaded in due course that the I.A.T. has made an error of law. But there are disadvantages. There can be no oral renewal and there is no right to pursue the application to the Court of Appeal. Mr. Husain has pointed out that in a significant number of cases, refusal on the papers has been overturned on an oral renewal and that there are examples in the books of claims which have had to be taken to the Court of Appeal before permission has been granted and success ultimately achieved.[7]No system set up and operated by human beings can ever achieve perfection. Even the House of Lords, the “voices of infallibility” as they have been called, have recognised that they may err and sometimes that recognition has come very soon after the decision which has turned out to be wrong. The question must be whether the system which is in operation is sufficiently fair to enable it to be said that errors are unlikely to occur. The present system involves an appeal to an independent adjudicator who normally hears evidence and will reach his or her own conclusion based on the evidence which is put before him or her. There are now some 600 or more full or part time adjudicators and the large numbers of cases mean that they work under considerable pressure. Mistakes can be made and the fact that more than 25% of the 900 or so applications for permission to appeal made to the I.A.T. each week are successful shows how necessary it is to have a review based on error of law. These numbers place a great burden on the members of the I.A.T. who have to deal with these applications. In order to process them within a short time, an individual member has to deal with 120 applications in the course of a week or 24 each day. It must be obvious that there is a real prospect that errors will occasionally be made. It is a tribute to those members, who have the equivalent status to circuit judges and who have a considerable expertise in dealing with immigration claims, that there are only a relatively small number of statutory reviews and that a very small percentage of those are successful. At present, the Administrative Court is receiving about 35 to 40 applications each week and no more than 20% are successful. The numbers are very small in the context of immigration claims as a whole, but, since most relate to asylum, any error can have disastrous results. In fact, the volume of statutory reviews is, despite the increase in numbers, below that of judicial reviews being received before statutory review took over.[8]Section 101 of the 2002 Act does not expressly seek to oust judicial review by providing, as Parliament has done in other cases where a limited right of appeal has been introduced where judicial review was available, that the decision in question cannot otherwise be questioned in any proceedings. Access by a citizen or a person who is entitled while in this country to the protection of its laws to the Court is a right of the highest constitutional importance. Legislation which removes that right is inimical to the rule of law. In Boddington v British Transport Police [1999] 2 A.C. 143 at p.161c, Lord Irvine of Lairg, L.C. said this:- “In approaching the issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so”. This principle applies to decisions of tribunals (see Anisminic v Foreign Compensation Commission [1969] 2 A.C. 147), but the fact that there already exists an appeal to an independent tribunal is relevant in considering whether in any given set of circumstances judicial review is still needed.[9]The importance attached to the right of access to the Court for judicial review has meant that express words must be used by Parliament to achieve its removal and even apparently express words will not necessarily achieve the object. This is because what have often been described as ‘no certiorari clauses’ will always be construed as ineffective to prevent review of decisions which are in law regarded as nullities. Judicial review cannot be excluded by implication. That in my view is clearly established by authorities which are encapsulated in the words of Denning L J in R v Medical Appeal Tribunal ex p. Gilmore [1957] 1 Q.B. 574 at 585 that:- “The remedy of certiorari [now infelicitously called a quashing order] is never to be taken away by any statute except by the most clear and explicit words”. This approach was recently confirmed by the Court of Appeal in an important decision to which I shall have to return, R(Sivasubramaniam) v Wandsworth County Court [2003] 1 W.L.R. 475. In paragraph 44 on p. 489, Lord Phillips M.R., giving the judgment of the court, after citing Denning L.J’s dictum, said:- “The weight of authority makes it impossible to accept that the jurisdiction to subject a decision to judicial review can be removed by statutory implication”. Miss Laing sought to distinguish Sivasubramaniam on the ground that in the circumstances of that case, which concerned an attempt to pursue judicial review in relation to a County Court where Parliament has established a detailed appeal process, there was no appeal to the High Court whereas here Parliament had specifically made provision for access to the High Court. I am satisfied that the Court of Appeal was laying and was intending to lay down a proposition of general application which, as the authorities upon which it relied show, was not circumscribed by the facts of the particular case. That that proposition is of general application is entirely consistent with observations of Lord Oliver of Aylmerton in Leech v Governor of Parkhurst Prison [1988] A.C. 533 at 581. The precise provisions in a given case will be highly material in considering whether the court should exercise its discretion in favour of permitting judicial review but will not remove the courts’ jurisdiction to entertain a claim for judicial review.[10]I am entirely satisfied that the court’s jurisdiction is not removed. However, it is clear that it was Parliament’s intention that statutory review should take the place of judicial review. There is a consistent line of authority which establishes that judicial review is a remedy of last resort and that an alternative remedy must be pursued if it exists. Whether judicial review may then be permitted will depend on the circumstances. In R v Birmingham City Council ex p Ferrero [1993] 1 All E.R. 530, the Court of Appeal was concerned with a power in the interests of public safety to prohibit the sale of particular goods, which carried a right of appeal to a Magistrates’ Court. The case concerned the prohibition in respect of chocolate eggs containing plastic toys one of which had been swallowed by and choked to death a small boy. Judicial review was sought. It was denied because of the existence of the alternative remedy. At p.537b, Taylor L.J., giving the only reasoned judgment, said:- “There are very strong dicta, both in this Court and in the House of Lords as cited, emphasising that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure it is only exceptionally that judicial review should be granted”. Lords Scarman and Templeman in Preston v IRC [1985] A.C. 835 at 852 and 862 respectively had made the same point but in more emphatic language. In Sivasubramaniam in Paragraph 47 on p.490 the Court dealt with Counsel’s submission that permission to claim judicial review should not be granted when a suitable alternative remedy is available thus:- “There is indeed an abundance of authority which supports Mr. Sales’s submission. [A number of authorities including Ferrero and Preston are then referred to]. What those authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused”.[11]Mr. Fordham drew particular attention to the penultimate sentence in support of his submission that statutory review was less satisfactory because it did not include the right of renewal and in particular did not provide for the possibility of oral argument in a public hearing, nor any access to the appellate courts. It seems to me that where Parliament has introduced a new procedure to deal with a particular problem which it perceives to exist, the court should hesitate long before considering that procedure to be less satisfactory. Parliament was aware of the existence of judicial review and quite clearly intended, as I have said, that statutory review should take its place. It clearly regarded the new procedure as satisfactory. In the light of the two tier appeal system which exists, it was in my view entitled so to regard it. It is proportionate to recognise the need for consideration by a High Court judge but, because of the very real problems created by delay and the pursuit of unmeritorious claims, to limit that consideration in the way which s.101 and CPR 54 has ordained. In Paragraph 48, the Court in Sivasubramaniam, having referred to the scheme set up which governs appeals at all levels of courts, said that to permit an applicant to by-pass the scheme by pursuing a claim for judicial review was to defeat the object of the exercise. Lord Phillips, M.R. continued:- “We believe that this should not be permitted unless there are exceptional circumstances and we find it hard to envisage what those could be”. Precisely the same approach should be adopted here.[12]In Sivasubramaniam the Court expressly considered claims for judicial review of refusals of permission to appeal by the I.A.T. In Paragraph 52 on p.491, Lord Phillips M.R. said this:- “There are, in our judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the tribunal immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court judge is a reasonable, if not an essential, ingredient in that scrutiny”. It is to be noted that review by a High Court judge is referred to, not the need for the whole panoply of judicial review. When Sivasubramaniam was decided, the 2002 Act was about to be passed but the relevant provisions were not in force so that judicial review was still the only route available. Statutory review does involve review by a High Court judge and there is no reason to believe that the Court’s observations which I have just cited were intended to require more than that.[13]An important feature of statutory review is that it permits recourse to a High Court judge whose decision is final. This means, it is submitted, no more than that there is no appeal. I have been referred to cases where notwithstanding an alternative remedy and even one which provides that the High Court judge’s decision is final judicial review has been permitted. In R(Cheltenham Builders Ltd) v South Gloucestershire District Council [2003] EWHC 2803 (Admin), Sullivan J was concerned with a claim for judicial review of a decision of the Council to amend the Register of Town and Village Greens. Section 14 of the Commons Registration Act 1965 gives the High Court power to rectify the Register and an objection was taken to the claim for judicial review on the ground that the s.14 route should have been used. Sullivan J made the point that the procedures did not enable precisely the same relief to be granted in that judicial review would enable the registration itself to be quashed. Sullivan J referred to Sivasubramaniam and made the point that judicial review was still available. There was no question of bypassing the statutory scheme; s.14 did not require permission to be obtained and there were no specific time limits. He unsurprisingly felt able to reach a just conclusion by permitting the claim for judicial review and that under s.14 to run in parallel. In the circumstances of that case, to have allowed the objection to judicial review to have prevailed would have allowed procedural obstacles to defeat justice, there being no conceivable prejudice to the defendants and no purpose in erecting the obstacle. The ghosts clanking their mediaeval chains referred to by Lord Atkin would indeed have been abroad to defeat justice: see United Australia v Barclays Bank Ltd [1941] A.C. 1 at 29.[14]Miss Laing submitted that the decision of the judge on statutory review created an estoppel. Since both these claims sought to reargue the points which the judges had rejected, they were an abuse of the process. Estoppel is said to have no place in public law, but that relates to the doctrine as it applies to the acts of bodies other than Courts of law. I was pressed with Westminster City Council v O’Reilly [2004] 1 W.L.R. 195. Section 28A of the Supreme Court Act 1981 provides that a decision of the High Court on an appeal by way of Case Stated which is not in any criminal cause or matter shall be final. The case concerned a licensing appeal. Mackay J had clearly found the point at issue a difficult one and he granted permission to appeal, his attention not having been drawn to s.28A. When the appeal came before the Court of Appeal, it inevitably declined jurisdiction, following the decision of the House of Lords in Re Racal Communications Ltd [1981] A.C. 374. In paragraphs 19 to 21 on p.199, Lord Woolf, C.J. said this:- “In his submissions Mr Saunders indicated that if the outcome of that fresh application was a decision which was adverse to his clients because of the judgment of Mackay J, it would be his clients’ present intention to make an application for permission to apply for judicial review. That application for permission to apply for judicial review would be made with a view to achieving a decision by this court which would not be available on an appeal by way of case stated. It would obviously be a matter for the court before whom the application for permission to apply for judicial review came to decide the appropriate action in the circumstances for the court to take. Mr Rankin, who appears on behalf of Westminster City Council, courteously indicated to this court that his present instructions would then be to argue that to grant permission for an application for judicial review would be wrong because the application for judicial review would constitute an abuse of process. If any such argument is advanced, it will be for the judge dealing with the question of the grant or refusal of permission to apply for judicial review to determine. It appears to us that there would be two matters for that judge to take into account(1) the fact that the decision of Mackay J is treated by the legislation as final; and(2) the fact that Mackay J was of the opinion that there should be an appeal (subject to there being jurisdiction for that appeal to be heard). The object which Mackay J had in mind could be achieved on an application for judicial review, namely that there should be consideration by this court, whereas it could not be achieved on an appeal by way of case stated. Accordingly, an alternative course to that which may be urged on behalf of the council would be for the judge hearing the application for permission, to grant that permission but to dismiss the application so that an appeal to this court would be available to the licensees. But it is for the decision of the judge hearing the application for permission to apply for judicial review to determine what is the appropriate course to take”.[15]It is to be noted that Lord Woolf and the Court (since the other two members agreed with the order he proposed based on these observations) did not decide that judicial review would be appropriate when or if the magistrates made a fresh decision. Furthermore, what seems to have moved Lord Woolf was concern that MacKay J obviously felt that a decision of a higher court on the point was needed and there was no other way of obtaining such a decision. With the greatest respect, that is not entirely so since any subsequent Case Stated could and no doubt would have been put before a Divisional Court which would have contained at least one Lord Justice. While judicial review was not excluded, it is difficult to see that exceptional circumstances such as Sivasubramaniam regarded as necessary existed. However, in statutory review, if the judge lights on a point which he regards as difficult, he will no doubt reverse the I.A.T.’s refusal of permission to appeal. The point will then be considered by the I.A.T., whose substantive decision is appealable to the Court of Appeal. In the circumstances, O’Reilly’s case is clearly distinguishable and does not in my judgment assist the claimants.[16]The claimants submitted that to deny their right to seek judicial review would breach Articles 6 and 14 of the European Convention on Human Rights. It is said that Article 6 guarantees a fair and public hearing and that statutory review does not provide for that. Even if Article 6 did apply, that submission is based on a misunderstanding of what Article 6 requires. It is necessary to look at what is provided to enable a decision to be challenged as a whole and it is clearly wrong to focus on one stage of the process. A fair and public hearing is provided by the right of appeal to an adjudicator. Article 6 does not require a right of appeal or review, let alone an oral hearing. There would thus be no breach of Article 6.[17]However, in my judgment Article 6 does not apply at all. That follows from the decision of the ECtHR in Maaouia v France (2001) 33 E.H.R.R. 1037. That case concerned a deportation order made against a Tunisian which was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to procedures for the expulsion of aliens is to be found at paragraphs 35 to 38 of the judgment of the Court at pp1044-1045. These read:- “35. The Court has not previously examined the issue of the applicability of Article 6(1) to procedures for the expulsion of aliens. The Commission has been called upon to do so, however, and has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6(1) of the Convention. 36. The Court points out that the provisions of the Convention must be construed in the light of the entire Convention system including the Protocols. In that connection, the Court notes that Article 1 of Protocol No 7, an instrument that was adopted on 22 November 1984 and which France has ratified, contains procedural guarantees applicable to the expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take “further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention …” Taken together, those provisions show that the States were aware that Article 6(1) did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. That construction is supported by the explanatory report on Protocol No 7 in the section dealing with Article 1, the relevant passages of which read as follows:
“6. In line with the general remark made in the introduction …, it is stressed that an alien lawfully in the territory of a member state of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Article 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the … Convention … as interpreted by the European Commission and Court of Human Rights … 7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the … Convention …, in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the … Convention … 16. The European Commission of Human Rights has held in the case of Application No.7729/76 that a decision to deport a person does “not involve a determination of his civil rights and obligations or of any criminal charge against him” within the meaning of Article 6 of the Convention. The present articles does not affect this interpretation of Article 6. 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject-matter of the present case, do not concern the determination of a “civil right” for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention”
. Mr. Fordham sought to distinguish that case on the basis that what is in issue here is an alleged breach of Article 3 and that does concern civil rights. However, Article 6 does not apply to the procedure for the removal of aliens whatever may be the grounds for that removal and, as the Court makes clear in Paragraph 36 in its citation from the explanatory report on Protocol No.7, the protection is supplied by the applicability of Articles 3 or 8. “6. In line with the general remark made in the introduction …, it is stressed that an alien lawfully in the territory of a member state of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Article 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the … Convention … as interpreted by the European Commission and Court of Human Rights … 7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the … Convention …, in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the … Convention … 16. The European Commission of Human Rights has held in the case of Application No.7729/76 that a decision to deport a person does “not involve a determination of his civil rights and obligations or of any criminal charge against him” within the meaning of Article 6 of the Convention. The present articles does not affect this interpretation of Article 6.[18]In support of the argument that Article 6 applies, reliance is placed on observations of Hale L.J. in R v Secretary of State for the Home Department ex p Saleem [2001] 1 W.L.R. 443. That case ruled that a procedure rule (which provided that service of documents must be deemed to have occurred even if it could be proved that it had not) was ultra vires. At p.458f, Hale L.J. said:
“There is an analogy here with the principles established under Article 6 of the E C H R. Immigration and asylum cases have not been held by the ECtHR to be ‘the determination of his civil rights and obligations’ for the purpose of Article 6. Furthermore, Article 6 does not guarantee a right of appeal. But if the State establishes such a right it must ensure that people within its jurisdiction enjoy the fundamental guarantees in Article 6”
. I confess that I have considerable difficulty with this passage, in particular with the last sentence. Hale L.J. cannot have intended to say that the establishment of a right of appeal in immigration cases means that Article 6 applies to the appeal process even though it does not otherwise apply. Such a conclusion would be contrary to all the jurisprudence on Article 6. If she did mean what she appears to be saying, I must respectfully disagree. If, as I suspect, all she is saying is that there is an analogy and that any appeal process must be fair, there is no difficulty. But I am satisfied that these observations cannot found a claim that, despite Maaouia v France, Article 6 applies to one part of the system.[19]It is said that the fetter on judicial review unlawfully discriminates against non-nationals on the ground of their nationality. The claimants pray in aid a decision of McCombe, J in Hindawi v Secretary of State for the Home Department [2004] EWHC 78 (Admin). That case concerned a provision that long term prisoners who were subject to a recommendation for or liable to deportation could not be granted parole. This was unlawful because there was a different and more beneficial regime for nationals and so discrimination was based on nationality. The differential treatment related to long term prisoners and depended entirely on their nationality. In the present cases, we are concerned with a particular regime which deals with the process of removal or refusal of leave to enter. By its very nature that regime can only apply to non-nationals. Thus the only question is whether that regime is fair. For the reasons I have given, in my view it is. Article 14 has no application in the circumstances.[20]It is an abuse of process for a claim for judicial review to be pursued (after a statutory review has failed) on grounds which were or could have been relied on in the statutory review claim. The decision of a High Court judge cannot be judicially reviewed and this is an attempt to get round that prohibition. The claimants maintain that the court’s discretion should not be exercised so that an ouster is established in fact if not in law. However, it would clearly be contrary to Parliament’s purpose in enacting s.101 to permit judicial review unless there are exceptional circumstances and by no stretch of the imagination can a claim based on grounds which were or could have been raised in the statutory review be regarded as one to which exceptional circumstances apply. I recognise that it is dangerous to say ‘never’, but the above permits me to do so. Otherwise where new material comes to light the circumstances will have to be considered, but it is difficult to envisage any situation which would make judicial review appropriate short, perhaps, of evidence of fraud or bias or similar matters.[21]A failure to use statutory review will certainly prevent any attempt to use judicial review. Equally, a failure to obtain statutory review is almost inevitably a bar to subsequent judicial review. An attempt to pursue judicial review will be regarded as an abuse of process unless capable of showing the necessary very exceptional circumstances and will be summarily dismissed.[22]It follows that these claims, which, although I have not considered their merits, are based on the same grounds as were relied on in the unsuccessful statutory review, must be dismissed.

Cited in 1 later judgment