The Queen on the application of Pamela Alburtha Grace v Secretary of State for the Home Department
<strong>Summary</strong>
This case deals with the approach which a Judge of the Upper Tribunal must adopt when considering whether to certify an application for permission to apply for Judicial Review as ‘totally without merit.’ (‘TWM’)
<strong>Facts of the case</strong>
A claimant whose application has been considered on the papers by a Judge who has found it to be TWM is debarred from renewing his application at an oral hearing in the Upper Tribunal. His only recourse is to a Judge of the Court of Appeal who will decide whether or not to grant permission to apply for Judicial Review or permission to appeal. That decision is restricted to a decision on the papers. The Judge has no discretion to adjourn the application to an oral hearing. If the Judge in the Court of Appeal, having considered the papers, refuses the application, that is the end of the matter. This is to ensure that hopeless cases do not take up court and respondent time.
The appellant had lived in the UK illegally for about 10 years and then made an attempt to regularize her immigration status, based on a relationship with a British national. There were no children. The case was considered under and outside the Immigration rules and refused without a right of appeal. She then issued a claim for permission to apply for Judicial Review. The case was deemed to be ‘totally without merit.’
Permission was granted limited to the grounds of providing guidance on the meaning of ‘totally without merit.’
<strong>Point of law established by the case</strong>
The court came to the conclusion that it meant no more and no less than ‘bound to fail’. In doing so it considered previous case law which sought to address litigants who had a ‘plurality of hopeless cases’ and to prevent ‘abusive or vexatious’claims. The court also considered the Civil Procedure Rules at CPR 54.12.7 which in their view dealt with the growth in Judicial Review applications, a significant number of which they described as ‘hopeless’, ‘causing trouble to public authorities.’
<strong>How it affects you</strong>
Judicial Review is known as a remedy of last resort, as you only go down this road when you have exhausted all of your substantive rights of appeal.
It is important to note that once all substantive appeal grounds are removed under the Immigration Act 2014,aside from Human Rights, the rise in the number of permission applications for Judicial Review will in our view, grow significantly.
You should always take advice and be sure that your case does not fall to be considered as ‘totally without merit’, as there are always costs implications for applicants when going down this road.
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