Judicial Review: Unravelling the Meaning of “Totally Without Merit.”

- By Oshin Shahiean of OTS Solicitors

The Court of Appeal has recently addressed the complex meaning of ‘totally without merit’ in the case of Samia Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82.  The principle was introduced in 2013 in an attempt to curb the rise in judicial review and oral renewals.  In theory, the procedural change makes sense; however, on close examination, it proves to be a complex situation.

Background to the ‘totally without merit principle.'

In early 2015 appeal rights under the Points Based System (excluding human rights and refugee grounds) ended.  The only way for failed applicants to have their decision re-examined was through administrative or judicial review.

However, the increase in judicial review cases had been occurring a few years prior to this. judicial review is not an automatic right; a claimant must apply to the court to be granted leave for the case to be heard in full.  This is done initially on the papers (i.e. without a hearing). The test has traditionally been thought to be whether the claim is “arguable” or whether it has “a realistic prospect of success”. 

If permission were denied at this stage, then applicants could go to the court and argue orally why permission for leave for judicial review should be granted in what is known as a renewal hearing.  In most cases leave was denied; however, sometimes the court did find a reason to grant judicial review based on the oral argument.  Thus, the renewal hearing provided assurance that applicants had a second chance if their first request for permission failed.

With the marked rise in judicial review claims, this process led to a major bottleneck, with the courts having to spend large amounts of time on renewal hearings, some of which clearly had no prospect of success.  The solution, as of 2013, was to change the procedural rules to provide a new hurdle. Where a judge or tribunal has refused permission on the papers and considers the claim to be “totally without merit”, then the claimant will not get his or her oral renewal hearing.

The Court of Appeal definition of ‘totally without merit.'

For there still be a right to renewal hearings (which is clearly the intention behind the amended rules), ‘totally without merit’ must mean something more than ‘non-arguable’.

In the Wasif judgment, Underhill LJ, giving the judgment of a court stated:

“In our view, the key to the conundrum is to recognise that the conventional criterion for the grant of permission does not always in practice set quite as low a threshold as the language of “arguability” or “realistic prospect of success” might suggest. There are indeed cases in which the judge considering an application for permission to apply for judicial review can see no rational basis on which the claim could succeed: these are in our view the cases referred to in Grace as “bound to fail” (or “hopeless”). In such cases, permission is of course refused. But there are also cases in which the claimant or applicant (we will henceforth say “claimant” for short) has identified a rational argument in support of his claim but where the judge is confident that, even taking the case at its highest, it is wrong. In such a case also it is in our view right to refuse permission; and in our experience, this is the approach that most judges take. On this approach, even though the claim might be said to be “arguable” in one sense of the word, it ceases to be so, and the prospect of it succeeding ceases to be “realistic”, if the judge feels able confidently to reject the claimant’s arguments. The distinction between such cases and those which are “bound to fail” is not black-and-white, but we believe that it is nevertheless real; and it avoids the apparent anomaly [whereby all permission refusals would otherwise be marked “totally without merit”]”.

In addition, the judges said that a case should only be considered ‘without merit’ where the judge is satisfied that a hearing could serve no purpose in allowing the claimant to address perceived weaknesses or omissions in the case.  They also emphasised that if a case was considered to be ‘without merit’, separate reasons must be given as to why the judge came to such a conclusion.

‘Totally without merit’ – the end of the matter?

Not quite.  Although a “totally without merit” ruling is not itself appealable as such, a claimant can challenge the refusal to grant permission to apply for judicial review. To do so, they must of course first seek permission to appeal. Where permission for judicial review has been refused and the case certified as “totally without merit”, then the application for permission to appeal will be determined on the papers without an oral hearing (r.15 and r.52.15A Civil Procedure Rules).

Therefore, permission may still be sought to appeal the decision to refuse permission. But as the case is “totally without merit”, as opposed to being “not arguable”, permission to appeal the decision to refuse permission on the papers will itself only be considered via review of  the papers. If permission is granted, there would then be an oral hearing in the Court of Appeal about the failure of the High Court to allow an oral hearing.

Given this state of affairs, it is easy to see why a good Immigration solicitor will only lead a client down the judicial review path if they feel there is a good chance of success.  One would be loath to think of the cost involved, in terms of both money and sanity, when claimants find themselves in the position of seeking permission to appeal the fact permission was refused.

OTS Solicitors has a strong reputation for being one of the best Immigration law firms in London and has years of experience managing complex judicial review cases.  You can make an appointment with one of our experienced Immigration solicitors by phoning our London office on 0203 959 9123.  We look forward to hearing more about how we can assist you with your Immigration concerns.

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