‘Meritless’ Claims: Judicial Review Changes Take Aim at Migrants and Asylum Seekers

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New research carried out and published by the Home Office claims that migrants are abusing the asylum system. Recommendations announced today make preparations for changes to judicial review, rolling back access to protection against government decisions on deportation.

This comes after recommendations announced today from the Faulks report on judicial review suggests these government fears about abuse of the system are not made out in evidence. Infact, report conclusions state the opposite: ‘claims are decreasing’ and the ‘evidence did not suggest that large numbers of claims lacking merit’ clog up the system. Buckland claimed these conclusions could mean an expansion of judicial review described as ‘worrying’.

Judicial review a vital check on power

Judicial review is in actuality a vital check on government power, to check decisions are made in a lawful way. It is often the most meaningful way an individual can enforce their rights against the state to challenge a government decision.

If a claimant wins the case, the government must make a different decision, sometimes under specific orders by a judge. However, the new for a sweeping review has been trailed as ‘preventing abuse’ of the courts in immigration or asylum cases.

A study of people in immigration detention by the Home Office since 2017 shows that more than 70% applied for legal appeals ‘days before they’re due to be removed’, news reports have stated.

While four out of five of these applications were unsuccessful, the applicants were still allowed to remain in the UK for a short period. However, this does not mean unsuccessful migrants are staying in the UK without the right to, as the Home Office argues.

Home Office press releases fail to mention that detention usually ends with 67% of migrants being deported, according to their own research.

Immigration detention judicial review
A detainee at Yarl’s Wood Detention Centre, 2015 [Pete Maclaine, Shutterstock]

‘Cart’ judicial review

Robert Buckland, Lord Chancellor and Secretary of State for Justice who presented the Faulks review findings today in Parliament has consistently voted in favour of enforcing tougher immigration policy and reduce support for ‘failed asylum seekers.’

Two recommendations from report to take forward as soon as possible will include heavily restricting ‘Cart’ judicial review. Combined with the government’s attack on the asylum system, this move will bring executive decisions of government beyond challenge of the courts with much less oversight.

Overturning ‘Cart’ will mean reforming which immigration cases can be subject to judicial review, the government will argue. For migrants and asylum seekers in detention, judicial review can provide the opportunity for them to safely stay in the UK if the Home Office is attempting to deport them.

According to reports, only 0.2% of the 5,500 judicial review cases since 2012 were successful. However, legal experts have commented that statistics such as this don’t provide a full picture.

Skewed statistics

By turning the narrative on its head, statistics show that 20% of the so-called ‘last minute’ legal claims against the Home Office do prevent deportation. In addition to this, since 2017, 25% of those detained under immigration offences win their appeals.

Without the judicial review freely available in these immigration offence cases, a large portion of migrants would have been unduly deported by the Home Office. Hundreds should never have been in detention at all.

Commenting on the report, Chris Philp, Minister for Immigration Compliance and Justice said: ‘These last-minute claims waste the time of judges and our courts and delaying the process of assessing claims from the most vulnerable.

‘This is why we will comprehensively overhaul our asylum system and build one which is fair but firm. This will allow us to better protect and support those genuinely in need but remove more easily from the UK those with no right to be here.’

Lack of success points to migrants and asylum seekers applying for judicial review as a ‘hopeless’ last attempt to stay in the country, the Home Office claims. On the other hand, arguing this is a problem of ‘illegal immigrants’ is not factually accurate and obscures the facts of who the department puts in detention in the first place.

Among the referrals, there has been an increase in claims over modern slavery (NRM). In 2017, only 3% of referrals related to NRM, in 2019 it skyrocketed to 16% with an increase of over 1,500 migrants referred.

Robert Buckland, Lord Chancellor is heading up the Faulks review of judicial review
Robert Buckland, the Lord Chancellor, will likely vote in favour of giving the Home Office more power against the judicial system. [Bart Lenoir, Shutterstock]

Furthermore, the majority of claims still came from those seeking asylum with 47% of referrals attributed to asylum. Under international law, entering a country as an asylum seeker does not make the individual an illegal immigrant or criminal.

The report has also revealed that only 0.2% of the 5,500 judicial review cases since 2012 were successful, most of which were immigration and asylum cases

Correcting unlawful actions

The Government is also likely to lean today’s proposal on the idea that there is a ‘migrant’ crisis in the UK that is placing strain on the judicial process and people’s taxes used for detention. However, statistics from independent sources paint a different picture.

Research from the Migration Observatory states that in 2019, there were 24,400 people in immigration detention. On the surface this is a large number, however, it’s at the lowest it’s been since 2009 when the Home Office began publishing official detention statistics

Immigration data released most recently by the ONS also shows that immigration removals are at the lowest they’ve been since 2004, when current data collection had begun.

Many of the problems faced, experts say, can largely be attributed to problems detainees and asylum seekers have accessing legal representation and lack of fair action from the Home Office, making corrections of wrong decisions necessary. Just a month ago, the government was found to be acting unlawfully after a man was found to be without a lawyer for 10 months and was forced to represent himself.

In the context of a system that disregards legal representation, it is not unusual for there to be so many ‘last minute’ claims as an individual is likely to be forced in that position.

Rather than forcing a realisation of operational failures, and of the weaknesses of the system of detention, the Government’s idea of an asylum system overhaul against ‘abuses’ is one where the government has selective powers to decide what judicial reviews can go forward.

This so-called ideal system would leave complex immigration law in the hands of barely trained junior ministers and civil servants. It would leave out the professional legal involvement of judges in the most important stages of a referral application.

[Header image: IR Stone, Shutterstock]
Written by
Kieran Isgin