Independent Review of Administrative Law recommends that Cart JR applications be discontinued due to low success levels

The Independent Review of Administrative Law (IRAL) Panel, led by Lord Faulks, yesterday published the report of its findings into administrative law and the use of judicial review.

The 195-page review can be downloaded here. The Ministry of Justice's 56-page response is here.

The headline finding of interest for readers of EIN is the IRAL's recommendation that Cart judicial review (JR) applications should be discontinued. A Cart JR is a judicial review against a decision of the Upper Tribunal refusing permission to challenge a decision of the First-Tier Tribunal.

The IRAL concluded that Cart JRs have such a low success rate that their continuation could not be justified.

The Ministry of Justice said in a press release: "Cart judicial reviews, which stand hardly any chance of success, were found to have led to delays with the swift processing of immigration and asylum cases, with last-minute challenges often made to frustrate the removal of people with no right to be in this country."

While the IRAL's review calculated a success rate of just 0.22%, there were some raised eyebrows from immigration legal voices on social media over the way the Panel had arrived at this figure. The success rate was extrapolated from the very limited number of reported cases involving a Cart JR found on legal databases against the total number of Cart JR applications made. For example, the Panel found 4 published cases in 2019 of which 1 succeeded (on the basis that an error of law was detected and corrected), but the success rate was calculated against the 645 total applications made in 2019 (i.e., only 1 case succeeded out of 645) even though the outcome of the 641 unpublished applications/cases was not checked. For a fuller explanation, see the section on Cart JR excerpted from the report and reproduced below.

The IRAL did note earlier in the report: "The Panel was concerned at the gap left by the fact that we were unable to undertake an in-depth study of immigration cases, which are responsible, as is well-known, for up to 90% of judicial review applications."

The Ministry of Justice confirmed in its response: "The Government therefore intends to implement the Review's recommendation to remove the avenue of lodging Cart Judicial Reviews, effectively reversing the outcome of the case [of R (Cart) v The Upper Tribunal [2011] UKSC 28]. It is understood that this may cause some injustice to those few cases brought in circumstances similar to the 12 that have identified errors of law since 'Cart' reviews began. However, the Government considers the concept of diverting large amounts of public resources towards these cases to be disproportionate. The Government is of the view that continued use of Cart Judicial Reviews is unjustified, taking into account that they make up the biggest proportion of Judicial Reviews, that Cart Judicial Reviews involve judges reviewing decisions made by judges of the same level, and that the success rate, of 0.22%, is extremely low."

With regard to Cart JRs, David Greene, the Law Society president, said in a statement: "Removing the option of recourse to judicial review in any area, let alone one as complex as immigration, risks injustice – as the government itself acknowledges – not only for those people whom the court would have found in favour of, but also for the much larger number of cases where settlement is achieved only under the threat of judicial review, which are not reflected in the panel's figures."

In terms of overall findings from the review, the Law Society Gazette quoted Sir Jonathan Jones, former Government Legal Department chief, as saying: "The review doesn't bear out the suggestion that there has been significant judicial overreach or a surge of cases in recent years, or that large numbers of unmeritorious cases are being allowed to proceed. In the main its recommendations are relatively modest. They certainly don't involve a major overhaul of judicial review."

Joshua Rozenberg noted on Twitter: "First impressions of the review of judicial review: Faulks has recommended minor changes which the government accepts. Government wants to push ahead and consult on much broader reforms that Faulks did not support."

The Lord Chancellor and Secretary of State for Justice, Robert Buckland, told the Commons yesterday: "The steps recommended by the panel are an excellent starting point for rebalancing our system, but the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process."

A consultation has been launched here, which is open for responses until 29 April 2021.

Liberty said the Government's response represented the latest attack on accountability in the UK. Sam Grant, policy and campaigns manager at Liberty, warned in a statement: "This Government, through its handling of the Windrush scandal, has shown why its treatment of migrants must be scrutinized and its decisions sometimes contested. And while this Government is targeting migrants in a popularist move to push through these changes, the fact is these changes would affect all of us, reducing our ability to stand up for our rights. Ordinary people must be able to challenge those in power because in a true democracy no one is above the law. Judicial review is an important part of that principle … If it's limited, we're on a dangerous path where governments – both now and in the future – can no longer be held to account."

For more general analysis of the report, the Administrative Law Matters blog has a handy summary here.

The section from the IRAL's report on Cart JR applications is worth reading in full, not least to understand the methodology used, and is excerpted below:

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THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW

Chair:
Lord Edward Faulks QC

Members:
Professor Carol Harlow QC
Vikram Sachdeva QC
Professor Alan Page
Celina Colquhoun
Nicholas J McBride

Date of publication March 2021.
CP 407

[…]

Cart JR applications

3.35. There is one form of public power in respect of which we think the grounds of judicial review could be usefully cut back, so as to prevent that form of public power being reviewed on the basis of an error of law. The power in question is the Upper Tribunal's power to refuse to grant someone permission to appeal against a decision of a First-tier Tribunal.

3.36. Such a refusal is not capable of being appealed. [49] However, in R (Cart) v Upper Tribunal, [50] the UK Supreme Court held that if the decision of the First-tier Tribunal (FTT) was affected by an error of law, with the result that the refusal of the Upper Tribunal (UT) to grant permission to appeal against the decision of the FTT was also affected by an error of law, then the UT's denial of permission to appeal could – in certain circumstances – be judicially reviewed and quashed. The UK Supreme Court subsequently held in Eba v Attorney General for Scotland [51] that the same position obtained under the Scottish law of judicial review.

3.37. Applications for judicial review against a decision of the UTT to refuse permission to appeal against a decision of FTT on the basis that the FTT's decision was affected by an error of law, and therefore the UTT's decision was also so affected, have come to be known as applications for a 'Cart JR'. Statistical information provided to us by the Ministry of Justice makes clear that applications to the Administrative Court for Cart JRs form the largest category of applications for judicial review to that court. The table below – which presents the five-year average number (from 2015–2019) of applications for judicial review to the administrative court each year per topic – illustrates the point:

Top six most common topics, (Immigration/Civil/Criminal) Five-year average (2015-2019)
Immigration		Civil: Other		Criminal
Topic	Count	Topic	Count	Topic	Count
Cart - Immigration	779	Town and Country Planning	160	Magistrates Courts Procedure	35
Immigration Detention	733	Family, Children and Young Persons	131	Crown Court	33
Naturalisation and Citizenship	210	Prisons (not parole)	119	Decision as to Prosecution	31
Immigration Human Trafficking	113	Homelessness	111	Other	25
Immigration Legislation Validity	100	Police (Civil)	92	Criminal Law (General)	22
Asylum Support	80	Disciplinary Bodies	92	PACE	20

3.38. Cart JRs contributed, on average, 779 applications for judicial review per year from 2015–2019, with applications for judicial review in relation to Home Office decisions to detain foreign nationals forming the next highest category, with an average of 733 applications for judicial review per year.

3.39. The procedures for bringing a Cart JR are laid out in the Civil Procedure Rules, 54.7A. Those make it clear – consistently with the decision in Cart – that permission to make an application for a Cart JR should only be granted if "there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law" and that either "the claim raises an important point of principle or practice; or...there is some other compelling reason to hear it." [52]

3.40. The UK Supreme Court hoped that allowing refusals of the UT to give permission to appeal against decisions of a FTT to be judicially reviewed for error of law – albeit subject to the limits just mentioned – would provide "for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system." [53]

3.41. In order to test how effective Cart JRs are at achieving this goal, we trawled Westlaw and BAILII for all the reports and transcripts of cases involving a Cart JR since Cart was decided. What we wanted to find out was this: In how many of those cases were the courts able to detect and correct an error of law that a FTT had fallen into and that the UT had failed to correct because it refused permission to appeal the FTT's decision?

3.42. For our purposes, a positive result would be recorded if:

• a court granted permission to make an application for a Cart JR and in doing so made it clear that the FTT in question had misapplied the law;

• pursuant to an application for a Cart JR, a court quashed the UT's decision not to permit an appeal against a decision of a FTT on the basis that the decision of the FTT (and by extension the UT) was affected by an error of law; or

• a court granted permission to make an application for a Cart JR on the basis that the claimant had an arguable case for being granted judicial review of the UT's refusal to grant permission to appeal the decision of a FTT, the UT's refusal was subsequently quashed under the Civil Procedure Rules, 54.7A(9), [54] and when the UT subsequently considered the claimant's appeal, it found in favour of the claimant on the basis that the FTT had indeed misapplied the law in the claimant's case.

If any of these were true in a particular case, then the ability to make an application for a Cart JR would have resulted in an error of law on the part of a FTT being detected and corrected.

3.43. On the other hand, a negative result would be recorded if:

• a court refused to grant the claimant permission to make an application for a Cart JR, or refused the claimant's claim for judicial review, on the basis that it was clear the FTT had not misapplied the law in the claimant's case; or

• a court granted permission to make an application for a Cart JR on the basis that the claimant had an arguable case for being granted judicial review of the UT's refusal to grant permission to appeal the decision of a FTT, the UT's refusal was subsequently quashed under the CPR Rule 54.7A(9), but when the UT subsequently considered the claimant's appeal, it found against the claimant on the basis that the FTT had not in fact misapplied the law in the claimant's case.

If either of these were true in a particular case, the ability to make an application for a Cart JR would not have resulted in an error of law on the part of a FTT being detected and corrected, because the FTT made no error of law.

3.45. The table below sets out our findings.

Year	2012	2013	2014	2015	2016	2017	2018	2019	Total
No. of applications	161	672	776	1,159	683	789	617	645	5,502
No. of reports / transcripts	10 [55]	11 [56]	7 [57]	5 [58]	3 [59]	1 [60]	4 [61]	4 [62]	45
No. of "positive" results	2	3	2	2	1	0	1	1	12

The table sets out (on the basis of the Ministry of Justice's statistics) the total number of applications for a Cart JR each year from 2012–2019, how many reports or transcripts of cases involving a Cart JR we were able to find on Westlaw and BAILII for each year, and how many of those cases had a "positive" result in that the ability to make an application for a Cart JR resulted in an error of law by a FTT being detected and corrected.

3.46. These figures confirm that when an application for a Cart JR is made "Only rarely will the judge conclude that the hurdles set out in CPR Rule 54.7A have been surmounted." [63] It will be rarer still that granting permission to pursue an application for a Cart JR will result in an error of law on the part of a FTT being identified and corrected. In fact, this happens so rarely (on the above figures, in 0.22% of all applications for a Cart JR since 2012) that we have concluded that the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued.

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[63] R (G) v Upper Tribunal [2016] 1 WLR 3417, [104] (Walker J).