The Court of Appeal has handed down further guidance in Samia Wasif v SSHD; Mohammed Hossain v SSHD  EWCA Civ 82 on when it is appropriate to certify applications for judicial review as "Totally Without Merit" (TWM).
Judicial review is becoming increasingly important as a remedy in immigration cases. Due to the abolition of appeal rights against most immigration decisions, the only remedy available in many cases is to seek judicial review of the decision in the Administrative Court. In recent years, many of the functions of the Administrative Court in respect of immigration cases have been transferred to the Upper Tribunal, so the decision on most immigration applications is in fact made by the Upper Tribunal exercising the powers of the Administrative Court.
In order to have an application for judicial review substantively considered, it is first necessary to obtain the permission of the Upper Tribunal to do so. In practice, this means that a written application is made to the Administrative Court, which then passes the application to the Upper Tribunal for consideration. If this paper application for permission is refused, then the applicant normally has the right to renew their application at an oral hearing. However, since July 2013, the Administrative Court and the Upper Tribunal have been empowered to certify unsuccessful paper permission applications as totally without merit, the effect of which is to prevent the applicant from renewing their application at an oral hearing. The only further remedy in a TWM case is a paper appeal to the Court of Appeal.
There has been growing concern amongst practitioners that it is harder to succeed in judicial review cases before the Upper Tribunal judges than it would be before judges in the Administrative Court. Many practitioners also feel that some Upper Tribunal judges are too quick to certify applications as TWM simply because the application has been refused.
The loss of the right to an oral renewal of the application has serious consequences for applicants. The real advantage of the oral hearing is that it gives the opportunity to for the applicant to focus on the reasons for refusal of the paper application and to persuade the judge (often a different one) that those reasons are wrong.
The Court of Appeal endeavoured to provide guidance on the meaning of TWM in R (ota Grace) v SSHD  EWCA Civ 1091. It stated that the purpose of TWM certification was not just to prevent repetitive applications or control abusive or vexatious litigants, but also to "confront the fact, for such it is, that the exponential growth in judicial review applications in recent years has given rise to a significant number of hopeless applications which cause trouble to public authorities ... and place an unjustified burden on the resources of the Administrative Court and the Upper Tribunal". It concluded that "TWM means no more and no less than 'bound to fail'".
It is understandable in the light of this guidance why some judges believe that they have to certify most unsuccessful judicial review applications as TWM. The test for deciding whether to grant permission to apply for judicial review is whether the application is "arguable" or has "a realistic prospect of success". It is difficult to see the difference between "unarguable" (which any unsuccessful judicial review application has been found to be) and "bound to fail".
This confusion has meant that the Court of Appeal has now had to revisit the matter in Samia Wasif and provide further guidance on the meaning of TWM. The Court was unable to provide a black-and-white distinction between the arguability and TWM tests but stated that phrases such as "bound to fail", "hopeless", and "no rational basis" were helpful in identifying TWM cases. On the other hand, it stated "there are also cases in which the claimant ... 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 cases, permission should be refused as "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 Court felt there was a real difference between such cases and those which are "bound to fail".
With the greatest respect to the Court of Appeal, the distinction it has laid down does not appear to be an easy one to apply in practice. However, the Court also set out a number of additional observations which should have the effect of making judges think very carefully before certifying applications as TWM. In particular:
1) Judges should not certify applications as TWM as the automatic consequence of refusing permission;
2) Repeating Maurice Kay LJ in Grace, no judge will certify an application unless he is confident after careful consideration that the case is truly bound to fail ;
3) Judges should only certify as TWM if satisfied that an oral hearing could not serve the purpose of allowing the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers;
4) Although it rejected the argument that the test should be "whether another Judge, with the benefit of oral submissions at an oral hearing, would be bond to refuse permission" (on the basis that the point of the renewal hearing "is not that the claimant is entitled to another dip into the bran-tub of Administrative Court or Upper Tribunal judges in the hope of finding someone more sympathetic"), it thought it a useful thought-experiment for judges to ask whether they can conceive of a judicial colleague taking a different view about whether permission should be granted;
5) In badly-presented cases, the judge should not certify as TWM if he suspects that proper presentation might disclose an arguable basis of claim;
6) Judges should not certify as TWM on the basis of points raised in the Home Office's summary grounds of defence to which the claimant might have had an answer if given the opportunity.
The Court also stated that where an application is certified as TWM, as the claimant has reached the end of the road (subject to appeal), then "peculiar care must be taken to ensure that all the arguments raised in the grounds are properly addressed. It stressed that if permission is subsequently sought from the Court of Appeal, "real difficulties can be caused if the judge refusing permission at first instance has not given adequate reasons, particularly since the option of directing an oral hearing is not open".
The Court also made it clear that judges must give distinct reasons for the TWM certification separately from the reasons for refusing permission, even if it is simply to say that the reasons are the same as those for refusing permission.
It is to be hoped that the Wasif judgment will lead to judges thinking more carefully before certifying judicial review applications as TWM. The requirement to give detailed reasons addressing every argument in the grounds may give some judges pause for thought before certifying. However, as already noted, the test adopted by the Court of Appeal to distinguish between the criteria for refusing permission and certifying as TWM appears to be a difficult one to apply in practice. It would be unsurprising if the Court has to revisit this issue again in the future.