Mapping immigration judicial review litigation: an empirical legal analysis

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Abstract

Immigration has, for many years, been the largest area of mass use of judicial review, regularly accounting for over 80 per cent of all claims lodged. During the 2000s, the number of immigration cases rose dramatically over-burdening the Administrative Court. In 2013, most cases were transferred to the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC), now a de facto specialist public law court.1 Some 90 per cent of immigration judicial reviews - three-quarters of all claims - are currently lodged with the UTIAC. This is a distinctive area of litigation. Immigration judicial reviews are neither sporadic nor peripheral, but recurrent and central. Such challenges arise in the context of the sometimes chronic administrative difficulties within the Home Office and often intense and politically-driven short-term pressures. Immigration decisions concern both intimate aspects of people’s lives and the state’s ability to regulate immigration. Immigration is also a complex and dynamic area of law, policy, and practice. The wider issue here is how to dispense justice for and manage effectively a high-volume of “bureaucratic� judicial reviews, that is, routine challenges that turn on their own individual facts and circumstances.2 This article seeks a better understanding of immigration judicial review litigation. Three themes organise the discussion. The first is whether immigration judicial reviews as a general category possess merit. In 1999, a minister complained that the “large number of unnecessary, vexatious, and useless� immigration judicial reviews created “delay, expense, and [was] counter-productive�.3 More recently, the Coalition Government has stated that there is a “culture of using meritless judicial review applications to delay immigration decisions�.4 Such a wide-ranging statement invites scrutiny of the data to determine levels of success. A second theme is how litigation is conducted in practice. Judicial review litigation should be conducted by the parties on a co-operative basis to assist the court. Yet, the pressures upon litigants can sometimes induce other behaviours. What do such behaviours tell us about how the parties contribute to the judicial process and executive attitudes toward judicial control? A third (longstanding) theme is how judicial review operates alongside other remedies, in particular, appeals. The Government’s policy of gradually restricting appeal rights has been accelerated under the Immigration Act 2014. What was the rationale for restricting appeal rights and does it withstand scrutiny? What are the likely consequences? This article begins by examining the increased volume of immigration judicial reviews, the subject-matter of such claims, and the causes of the increase. This is followed by an examination of how challenges progress throughout the process and their outcomes through both formal adjudication and settlement. The focus then turns to the conduct of litigation. The final substantive section considers the relationship between appeals and judicial review.

Bibliographical metadata

Original languageEnglish
Pages (from-to)652-678
Number of pages26
JournalPublic Law
Publication statusPublished - Oct 2015

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