Judicial Review and Courts Act 2022, restricting oversight of the High Court and ousting the appeals from higher tribunals

Abstract

The Judicial Review and Courts Act (JRCA) 2022 includes an ouster clause which limits  the raising of judicial review of an appeal from the Upper Tribunal's decision.  This prevents appeals reaching the courts from administrative decision that includes an error of fact and law. Its impact is most severe on immigration appeals  and it overrides the test established inR (on the application of Cart) v Upper Tribunal [2011] UKSC 28, which allowed the High Court to judicially review a decision of the Upper Tribunal to refuse permission to appeal to the court. This concerned the review that arose from breaches of the Human Rights Act that had denied an immigrant leave to remain in the UK. The exclusion clause in the JRCA is likely to restrict review of decisions when the fundamental rights are challenged and this will circumvent the powers of the judiciary to review cases. The argument in this paper is that the narrowing down of the judicial oversight over the decisions of public bodies will impact on the rule of law and also cause applicants to suffer injustice from executive decisions.