Mr Grayling says that immigration solicitors have been using JR as 'a cheap delaying tactic' and he is therefore determined to limit its use. 77% of JRs are brought in immigration cases.
JR is a legal proceeding whereby someone who believes that a public body (such as the Home Office) has made an unlawful or incorrect decision can apply to the UK's High Court for a ruling that the decision was wrong in law. The court can order the public body to reconsider its decision and to pay damages.
Mr Grayling and officials at the UK's Ministry of Justice are concerned that the number of JR applications has been rising in recent years. There were 6,692 applications in 2007 and 11,359 in 2011. Of those made in 2011, 8,734 were against immigration decisions.
Solicitors using Judicial Review as a delaying tactic
Mr Grayling says that immigration solicitors have been using JR to delay deportation of their clients even when they have no realistic chance of success. He points to the low success rate in JRs to support his case: Of the 8,734 judicial reviews of immigration decisions brought in 2011, only 31 (0.35%) were ultimately successful. He says that solicitors apply anyway because, even where an application for JR is ultimately unsuccessful, it can hold up a deportation considerably.
This is because of the way the JR procedure works. Before a JR can be brought, the solicitor must first apply for permission to judicially review a decision. A single judge will consider an application for permission by reading the papers presented by the applicant's solicitor. He will decide whether the papers disclose an arguable case. If they do, then the judge will grant permission to the applicant to apply for JR. If they do not, he will refuse permission.
In 2011, of the 8,734 applications for permission made, only 607 (7%) were granted leave to apply for JR. It took an average 83 days (nearly three months) for each unsuccessful application for permission to be dealt with. Where the judge granted leave to apply for JR, it took 275 days (nine months) for the review to be completed. Only 31 (5%) of those 607 decisions were found to have been unlawful.
New regime is intended to reduce number of applications
In order to limit the number of applications Mr Grayling has proposed the following changes
- A new £215 fee to be paid by applicants who wish to appear before a judge to argue their case after being refused permission to apply for JR
- Barring people from applying for a hearing in person where their case is found to be 'totally without merit' by the judge
Mr Grayling said 'Judicial review should be used by people who have carefully considered whether they have proper grounds to challenge a decision. We are changing the system so it cannot be used anymore as a cheap delaying tactic'.
However, the opposition justice spokesman Sadiq Khan has condemned the changes. He said they would result in more 'unlawful decisions going unchecked'. Mr Khan said 'no government should be above the law. It is essential that where the government or other public body has acted unlawfully, a judge can hold them to account.'
A spokesperson for the Immigration Law Practitioners Association said that there has been insufficient consultation and said that that the figures were misleading as in many cases where a judicial review application is made, a settlement is reached before the matter comes to court. This suggested that 'far from being unmeritorious, or deliberate 'delaying' tactics, the claims were properly and responsibly brought and conducted, and that the parties managed to achieve a resolution of the claim without using further court time and resources.'
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