Some interesting nuggets from a new report on judicial review, published today by the Institute for Government. The Home Office is the department most affected by this particular type of legal challenge, accounting for 80% of JRs between 2007 and 2013, of which most related to immigration and asylum decisions.
As well as examining the data, the researchers also spoke to civil servants about their attitude to judicial review and the effect it has on policy-making. The Home Office contribution is revealing.
One official spoke of how being taken to court is an inevitable consequence of tougher enforcement, saying the mindset is “if you are not being challenged by someone then you are not doing it right”. Another said that “if the government takes an aggressive position on deporting people (for example) it is going to encounter these problems”.
Judicial review is also seen as a political tool. The report says:
More than one interviewee told us that with certain Home Office decisions, politicians would find it more politically palatable to be forced to abandon a policy or action by a court than to abandon it themselves.
The authors point out that fixing the immigration system would stem the flow of JRs into Marsham Street: “defective policy making has increased legal risk”. Given the well-documented complexity of the immigration system, “it is little wonder… that the Home Office faces a high volume of legal challenges and is more likely to lose immigration and asylum cases than cases in other areas”. Quite so.