In this post, we consider whether immigration judicial review statistics can help you better understand what the chances of a successful outcome in your claim might be.
As ever, we have done our best to ensure that the statistics and information provided in this blog are accurate. We would reiterate that this is not legal advice, and should not be relied upon as such. If you would like an assessment of the prospects of success in your case then get in touch to book a consultation.
For more information about judicial review in general, see our resource collection.
What is “success”?
Before getting into the statistics, it is crucial to understand what ‘success’ means in the context of an immigration judicial review application.
Judicial review is a procedure that allows a judge to review the lawfulness of a decision or action by a public body, e.g. the Home Office or a Local Authority.
It involves a claimant – a person making a claim – asking a court to review a decision which they say has not been made in a lawful way (for an outline of the process, see our primer: “Judicial Review: who, what, where, how, why, when, and how much?”)
Broadly, the decision-maker has two options: either to defend the claim, or to accept that it was not lawfully made, and to review and/or withdraw the decision under challenge.
In any case where the decision-maker withdraws the decision, this is likely to be interpreted by the court – and on any measure – as a victory for the claimant: this is, after all, what all claimants ask for when they issue claims in this area.
If the Home Office is going to withdraw a decision, this will usually happen after the claim has been issued and/or where a judge has given permission to proceed to a full judicial review hearing, having accepted that a claimant has an arguable case.
How is this accounted for in the statistics? Well, read on.
What the statistics say
Since a change in legislation in November 2013, the vast majority of immigration judicial claims are heard in the Upper Tribunal Immigration and Asylum Chamber (‘UTIAC’), rather than the High Court. See our post Where to Issue your Claim, for more information on this.
Ministry of Justice Quarterly statistical data indicate that, since this changeover, 75,659 applications for judicial review of immigration decisions have been received by the UTIAC through to September 2020.
Of the total number of claims processed since then, roughly a third of claims do not proceed to the permission stage after they are issued.
According to the statistics, reasons include court fees having not been paid, the claim not being served in full or, crucially, one side having withdrawn their claim.
Bearing in mind that definition of success (above), a claim not progressing beyond this stage does not necessarily mean that it was not successful: in fact it may mean the opposite, and that the claim was settled in favour of the claimant.
Of the remaining claims that do proceed, the vast majority are decided “on the papers”, without the need for an in-person hearing.
This stage is also known as the “permission” stage and, in the UTIAC, a very high percentage of cases (over 90%) of claims are dismissed at this point.
This means that a judge has found that a case does not have a reasonable prospect of success, and therefore does not permit the claim to move beyond the “permission” stage to a full judicial review hearing.
Of those claimants who are given permission to proceed, only 30% are then successful following a full hearing.
A similar story in the High Court
The statistics in the Administrative Court (a division of the High Court) paint a similar picture.
Since 2013, 26,777 immigration judicial review claims have been received by the Administrative Court, with a significant drop-off since the transfer of most judicial reviews to the Upper Tribunal in 2013.
Again, of all the claims issued, a third of these were withdrawn before they were considered by the court.
Of the claims that were not withdrawn only 16% were granted permission to proceed to a full hearing. This is higher than in the UTIAC.
Of the claims that proceeded to a full hearing, 11% of the cases produced outcomes in favour of the claimant.
But numbers don’t lie, right?
On first reading, the statistics published by the Ministry of Justice do not present an optimistic picture for a claimant’s prospects in an immigration judicial review.
There appear to be significant barriers to even reaching a full hearing, and once there, a minority of claimants end up actually receiving a ruling in their favour, sometimes reported to be as low as 1%.
But what are these statistics telling us, and more importantly, what can they not tell us about immigration related judicial review proceedings and success rates?
A main issue with the Ministry of Justice’s data is that it does not tell us what is going on outside of the court.
The Ministry of Justice’s Guide to Reading the Official Statistics on Judicial Review in the Administrative Court confirms this:
3. The JR procedure has multiple stages. First, there is the pre-action stage. Here, a Pre-Action Protocol letter is sent, signalling the claimant’s intention to challenge a decision. Often, cases are settled before a formal application for JR is lodged. There is no data on pre-action settlement in the official statistics as those matters never formally enter the justice system.
Judicial review is a multi-stage process. At any one of these stages, it is possible for a claimant to withdraw their claim having received an offer from the decision-maker to settle the claim.
What the statistics do show is that there is a very high drop-off rate between the number of applications for judicial review and (i) the decision at permission, and then again (ii) cases that proceed to full hearing. What they cannot show is the reason for that drop-off.
In our experience, many immigration judicial reviews do not proceed where permission is given to the claimant to proceed, as the respondent Home Office will usually seek to settle the matter out of court.
This is because these initial stages act as a sort of ‘test’ stage, for both sides to see and review each other’s arguments, and then assess whether or not they believe they stand a chance at a full hearing.
At these stages, it is often the case that if the public body being challenged assesses that they have little chance of success in court, they will tend to settle with the claimant.
Lies, damn lies and statistics: the 1% myth
This outcome, whilst positive for the client, is not recorded by the Ministry of Justice as a “success” for the claimant. As the High Court confirms in its guidance notes on the statistics:
21. Finally, it is worth noting that these statistics do not show a number of important things about JR litigation. In particular, they do not show who the claimants are – whether for instance claimants are individuals, pressure or public interest groups, organisations, or public authorities; they do not tell us about the nature of the claims, whether for instance the claims focus on individual circumstances or raise public interest claims; they do not tell us how claims are funded or whether third parties intervened in claims; they do not tell us anything about the nature of settlements, for instance whether claims where settled in favour of claimants or defendants; they do not reveal the remedies granted by the court; and nor do the statistics tell us anything about what happened after the litigation.
As the Ministry of Justice freely admits, the available data by no means gives a full picture of the actual outcome of judicial proceedings.
Whilst claimant success rates appear to be low, on closer inspection they actually paint a picture of a justice system which works effectively to filter out claims that can be resolved without the need for a full hearing, saving all those involved time, energy and, importantly, costs.
Our personal experience in immigration judicial review proceedings is that the majority of cases that settle before this point do so in favour of the claimant, and that judicial review remains a vital tool for our clients, making a real difference in their lives.