In R (on the application of MN (Tanzania)) v Secretary of State for the Home Department [2011] EWCA Civ 193 the Court of Appeal has yet again returned to the vexed issue of the standard of review in asylum fresh claim judicial reviews. As Mark discussed last week, this category of judicial review claim will be heard in the Upper Tribunal from 1 October 2011.
The first paragraph of the judgment is quite wistful for earlier, simpler times:
There was a time when the development of the law by judicial decision progressed at a measured pace and had the appearance of being methodical. Today the pace can be frenetic and it sometimes happens that cases are decided without reference between them because, in the torrent of information, one court is left unaware of what another has decided. Steps are taken to try to ensure that this does not happen but they are not always successful. This appeal is concerned with a recent example.
To cut a long story short, the Court holds that the standard of review in Immigration Rule 353 fresh claim judicial reviews is the traditional Wednesbury standard, where the court reviews the decision of the Secretary of State rather than making its own mind up for itself. This will no doubt be a relief to judges of the Administrative Court and Upper Tribunal alike. The earlier indications to the contrary from some panels of the Court of Appeal are rejected. However, for claims involving section 94 of the 2002 Act (clearly unfounded certificate cases), the near unfathomable judgment of the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 is held to be binding and the court must make up its own mind about whether the threshold is crossed.