Irrationality and Proportionality in Judicial Review Claims
Unreasonableness. Irrationality. The Wednesbury principle. Proportionality. These terms are often bandied about by Immigration solicitors, often bamboozling even the best law students.
This article aims to take on the challenging task of explaining one of the most complicated areas of judicial review and discuss whether proportionality, a ground which has grown out of the principle of irrationality, could be a standalone ground for bringing a judicial review challenge.
Will I succeed? I will let you be the judge, feel free to comment at the end.
First things first, let’s look at what judicial review actually is.
The definition of judicial review
judicial review is a remedy of last resort, meaning all other avenues must have been explored before a judicial review is brought before the courts. Traditionally, the court has refused to resolve factual disputes or enter into the substantive merits of the decisions of public bodies. Rather, its traditional function is to ensure only that those decisions were lawful, procedurally fair and rational. However, the scope of judicial review is constantly developing and, in some cases, particularly those involving Human Rights, the court may be willing both to assume a fact-finding jurisdiction and to scrutinise the merits of decisions more closely.
In principle, judicial review can be used to challenge any act or omission by a public body which has a sufficient 'public element'. The act or omission must be done by a public body and be public in nature.
You can only challenge a decision via judicial review on the following grounds:
- illegality – the public body must understand and give effect to the law governing the action in question
- irrationality (also known as Wednesbury unreasonableness) – we will explore this in depth later
- material considerations - a decision-maker must inform themselves of and take into account all material considerations
- procedural unfairness - key elements of procedural fairness in most cases are the right to be heard and the absence of bias
- legitimate expectations—if a public body gives a clear assurance as to how it proposes to act whether through an express promise or a consistent practice, it will normally be required to comply with that assurance unless there is a good reason to depart from it
Irrationality as a ground for judicial review
In the case of Council of Civil Service Unions v Minister for the Civil Service  AC 374), Lord Diplock said that a decision would be irrational—and so unlawful—if it were:
“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
Unreasonableness has always been a notoriously difficult ground to fight a judicial review claim on. Therefore, claimants bringing an action under Human Rights or EU law tend to rely on the more flexible ground of proportionality.
In claims involving Human Rights or EU law it may be necessary for the Administrative Court to decide whether an act or decision was proportionate to a legitimate aim. Although this does not equate to a full merits review, it will normally require a greater intensity of review than normal.
The Supreme Court discussed the principle of proportionality at length in Pham v Secretary of State for the Home Department  UKSC 19. Although the case was not decided on the principle of proportionality, the learned judges showed clear support for its availability as a ground of judicial review regardless of whether the case has a European Union or ECHR dimension to it.
The key issue in Pham was whether it was lawful for the Home Secretary to strip the appellant of British Citizenship and deport him to Vietnam, where he had been born, on the grounds that he allegedly participated in terrorist training in Yemen. However, the Vietnamese government declared that the appellant was no longer a citizen of Vietnam, meaning, the appellant argued in Court, that he would be stateless. He also argued that, by depriving him of British Citizenship, the Home Secretary would also necessarily be depriving him of his EU citizenship. In those circumstances, both she and the courts were bound to have “due regard” to EU law when making and reviewing that decision. He argued that it was necessarily disproportionate to deprive him of EU citizenship where this would result in him being denied the benefits of any citizenship anywhere, and that the decision was therefore unlawful under EU law.
Lord Mance stated that he saw no difference between EU proportionality and domestic reasonableness review in this context:
“Removal of British Citizenship under the power provided by section 40(2) of the British nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy v Charity Commission, be both available and valuable for the purposes of such a review. If and so far as a withdrawal of nationality by the United Kingdom would at the same time mean loss of European citizenship, that is an additional detriment which a United Kingdom court could also take into account, when considering whether the withdrawal was under United Kingdom law proportionate. It is therefore improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law (at para. 98).”
He therefore considers that proportionality is certainly an independent ground for review for some cases arising at common law and that an EU law element may not always need to be present.
The suggestion in Phem that proportionality may be a standalone ground for judicial review is hugely significant. However, it is important to remember both that the comments on proportionality were obiter, and that they were made at a time when there was a very real risk that HRA 1998 would be repealed; an idea which was swept aside in the political chaos leading up to and following the EU referendum, but was recently resurrected by Justice Secretary, Liz Truss, who confirmed in August that a British Bill of Rights Bill is on the cards in the near future.
By making proportionality a stand-alone ground for judicial review, Immigration law claimants, who now have very little by way of appeal rights, would find a much easier test to surmount than the one laid down by Lord Diplock in 1985.
Times have changed, so must the law of judicial review to ensure that government bodies remain accountable. In today’s political landscape, not only in Britain but around the world, this is a protection we all must fight to preserve.
OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with settlement matters comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom would be happy to talk to you about challenging a decision by Judicial Review.
By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.