QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF RANA||Claimant|
|UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER||First Defendant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Second Defendant|
|SECRETARY OF STATE FOR JUSTICE||Interested party|
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Mr Eadie QC, Mr Grodzinski and Mr Pritchard appeared on behalf of the Second Defendant and the Interested Party
The First Defendant did not appear and was not represented
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LORD JUSTICE SULLIVAN:
"It is unnecessary to hold an oral hearing of the application for permission to appeal because I consider that it can properly be dealt with on the papers.
Permission to appeal is refused.
Reasons (including any decision on extending time)
Crucial to the decision was the finding that the applicant was not a genuine convert to Christianity. The question of how a genuine convert would be treated did not arise. The finding that the pre-baptism course and the act of baptism itself took place, and there was some knowledge of aspects of Christianity does not undermine or prevent at all the reasonable conclusion on the evidence that the conversion was not genuine."
The Court of Appeal's decision in Cart
"What then of Mr Drabble's contention that social security is a special class of case which has historically, and beneficially, been subject to such review notwithstanding the high legal expertise of the Commissioners, and for that reason should continue to be so? We accept the premise but not the conclusion. One of the principal purposes of TCEA is to unify the procedures of the disparate tribunals gathered into its structure. It contains no space for historical exemptions of the kind Mr Drabble seeks to establish. We put it this way because we are mindful that in Sivasubramaniam this court acknowledged an exception, based on the uniqueness of the subject-matter, in relation to judicial review of asylum decisions. Whether that will continue to be so in the light of what is decided in the present case both here and in Scotland is not for us to predict."
"Parliament has put in place an adequate system for reviewing the merits of decision made by district judges and it is not appropriate that there should be further review of these by the High Court. This, we believe, reflects the intention of Parliament when enacting section 54(4) of the Act." (paragraph 54)
"51. On the face of it, judicial review of such a decision might seem anomalous. In Robinson v Secretary of State for the Home Department  Imm AR 568 the Court of Appeal declined to give general guidance to the Tribunal as to the criteria that it should apply when deciding whether to give leave to appeal. The court did, however, indicate that a higher hurdle than mere arguability had to be crossed. If the Tribunal errs in its evaluation of the prospects of success of an appeal as a result of an error of law which is apparent from its reasons, permission to claim judicial review may be granted. In reality, the application for permission to claim judicial review comes close to being a renewed application for permission to appeal to the Tribunal. The Tribunal has the qualities of a court – certainly to the extent of satisfying the requirements of Article 6 of the European Convention on Human Rights. If judicial review of refusal of permission to appeal by the Tribunal is appropriate, is there any basis on which it can be ruled out of court where the challenge is to the refusal of permission to appeal by a Judge of the County Court?
52. 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 Tribunals 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."
The Parties' Submissions in Outline
The Statutory Framework
"... accordingly a proper exercise of the court's discretion to decline to entertain an application for judicial review of issues which have been or could have been the subject of statutory review."
See paragraph 26 of the judgment of the court given by Lord Phillips MR.
The Parties' Submissions in More Detail
"20. Where Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention. The satisfactory operation of the separation of powers requires that Parliament should leave the judges free to perform their role of maintaining the rule of law but also that, in performing that role, the judges should, so far as consistent with the rule of law, have regard to legislative policy.
21. Thus, in Sivasubramaniam, this Court had regard to the fact that the objects of the relevant provisions of the Access to Justice Act 1999 were to avoid a waste of judicial resources and to ensure that the level of judge dealing with a potential appeal was appropriate to the dispute. In the present case it is the clear intention of Parliament, as explained by Collins J, that statutory review under section 101 of the Act should be used in place of judicial review. The reason for that intention is the wish to process asylum applications with expedition. That is a legitimate objective ... It is right to have regard to that objective, but this cannot justify refraining from the use of judicial review if the alternative of statutory review will not provide a satisfactory safeguard for those who are, or may be, entitled to asylum."
"The need for members of tribunals to be expert in the subject matter of, or the law to be applied in cases in which they decide matters."
See section 2(3(c) of the 2007 Act).
"An application for permission to appeal to the Upper Tribunal is to be decided by one Upper Tribunal judge from those approved by the Senior President or the Chamber President."