Revista Temas de Derecho Constitucional

250 Revista Temas de Derecho Constitucional JUDICIAL REVIEW When all proceedings are exhausted and no other remedy is available, a claimant may resort to the judicial review of the Secretary of State’s decision. Judicial Review is a mechanism whereby an administrative act, omission or decision may be subjected to the ‘supervisory power of the court’. In Scotland that supervisory jurisdiction is exercised by the Court of Session; In Northern Ireland they are heard by the High Court. In England & Wales and for asylum and immigration cases the competent court is the UT. In Scotland an application must be submitted within three months of the decision having been made. Permission is required and may be granted by the court only if it is satisfied that the applicant can demonstrate a sufficient interest in the subject matter of the application, and the application has a real prospect of success 39 . It is worth emphasising that it is the legality of the decision, as opposed to its materiality or correctness what falls to be scrutinised. This means that seeking to have a decision judicially reviewed does not invite an examination of the merits or the facts. In other words, a judicial review is not an appeal. Broadly, there are three grounds on which judicial review can be sought: illegality , procedural impropriety and irrationality, as per the famous passage by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174. The concept of illegality refers to the lawfulness of the decision. The court will ask itself: Has the public body got the powers to make the decision or has it acted ultra vires ? If it has got the powers, a challenge on the basis of illegality fails. Procedural propriety has to do with the concept of fairness in the decision-making process. Has the party been heard an able to put forward its case? If the party has enjoyed the guarantees associated with ‘natural justice’ (such as the right to be heard and to challenge the evidence at a public hearing, according to law) the test is met. The issue of irrationality has to do with the reasonableness of a decision. This is a much harder challenge: The court will interfere with a decision on irrationality grounds only if it is ‘so unreasonable that no reasonable authority could ever have come to it’ as per the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, HL. Basically, only if it is absurd. Judicial review is a highly technical resource, but not a means to enquire into the merits of a decision. Only exceptionally can a decision taken by the authorities be disturbed on the basis of its merits, and that is when either the material findings have no basis on the evidence or are manifestly contrary to it. In any event, even if the tests are met, an action at this level is expensive and requires the instruction of agents and counsel. Given both the government’s agenda of austerity and the hostility to refugees referred to at the beginning, obtaining legal aid to fund a petition for judicial review is increasingly arduous. FRESH CLAIM One last resort available to a claimant is to make further submissions to the Secretary of State in the hope that these will amount to a ‘fresh claim’. Fresh claims are regulated 39 Section 27B(1)&(2) (Requirement for Permission) of the Court of Session Act 1988.