Robert Thomas and Joe Tomlinson have an excellent post entitled “A Design Problem for Judicial Review: What we know and what we need to know about immigration judicial reviews“:
The policy issue here is, at its core, about the choice of appropriate redress mechanism. Some immigration-related grievances will be suited to judicial review because they raise issues of legality. Other challenges could, perhaps, be better handled through an alternative complaint-handling procedure because they concern administrative error rather than illegality. It is possible that immigration judicial reviews may often operate as the most expensive complaints process dressed up as judicial review.
It might therefore be appropriate to think more radically about the nature of the judicial review jurisdiction. In the immigration context, there are specialist and experienced Upper Tribunal judges judicially reviewing the decisions of relatively junior civil servants – often at the grade of Administrative Officer. If a judicial review succeeds, then the Upper Tribunal judge sends the decision back to the Home Office to be remade, thereby involving more cost and delay. According to some legal practitioners, it has been known for a remade decision itself to contain further errors, which are then challenged by a second judicial review, and so on. The wider problem is the variable quality of government decision-making.
Is there some more efficient and proportionate remedy? The most obvious alternative is to have rights of appeal. A right of appeal to determine fact-sensitive issues is demonstrably superior to judicial review. As the Upper Tribunal has itself noted, ‘judicial review is an entirely unsatisfactory litigation vehicle for the determination’ of factual disputes. However, the government has – for largely political reasons – increasingly limited immigration appeals.
Another option would be to explore in more detail and more seriously the possibility of introducing bespoke systems of ‘merits judicial review’ in particular areas of judicial review of routine administrative decision-making, such as immigration. Under such a system of ‘merits judicial review’, the judicial review court or tribunal would review the challenged decision on traditional legality grounds. However, if there was an error of law, then the court could re-decide the case on its merits rather than sending the case back to the government decision-maker to be re-determined. This would reduce costs and time. It would also enable a specialist judge to make a decision on the application of the relevant rules and policies. The benefit of this would be enhanced efficiency, reducing delay, and lower costs.
The plea here is for more empirical evidence about the types of immigration dispute that arise, with a view (perhaps) to sorting them into disputes that are suitable for judicial review and disputes that are suitable for some other dispute resolution mechanism. There is already some empirical evidence, collected by Sarah Nason, that judicial review claims are generally concerned with relatively mundane matters of administration and common-garden-variety statutory interpretation rather than with matters of high constitutional principle. For what it’s worth, my impression is the same.
Nonetheless, the suggestion that we might be able to group disputes in this way raises two issues.
First, how to distinguish between the groups. In the context of the principle that judicial review applicants ought to exhaust alternative avenues of redress before turning to the courts, it has been suggested that a distinction can be drawn between “cases raising the sort of issues which the statutory appellate procedure is specifically set up to deal with and cases involving generalised principles of public law developed by the court to control the exercise of power” (Clive Lewis, “The Exhaustion of Alternative Remedies in Administrative Law” (1992) 51 Cambridge Law Journal 138, at p. 145. See also R (Great Yarmouth Port Company Ltd) v Marine Management Organisation  EWHC 3052 (Admin), at para. 68).
But this is a difficult distinction to draw. Consider R v Birmingham City Council ex parte Ferrero Ltd  1 All ER 530. This case involved the Kinder Surprise chocolate eggs. A child swallowed and choked on one of the surprises (a Pink Panther). The Council issued a suspension notice under consumer protection legislation, the effect of which was to ban the sale of the product for a period of six months. Claiming procedural unfairness, the manufacturer sought judicial review. Although the claim could be said to involve basic general principles of administrative law, judicial review remedies were not available because the manufacturer had not gone down the appeal route provided for by statute:
[T]here was available an appeal specifically provided by Parliament to enable a party aggrieved by a suspension notice to challenge it. The appeal was at least as expeditious, if not more so, than judicial review. It was more suited than judicial review to the resolution of issues of fact. The statutory scheme leant in favour of upholding the notice unless the goods were shown to be safe; but, should they turn out on appeal or otherwise to be safe, any aggrieved party was entitled to compensation (at p. 538. See to the same effect R v Falmouth and Truro Port Health Authority ex parte South West Water  QB 445).
Second, if one decides to draw a distinction notwithstanding these difficulties (and one may decide to set down a distinction on the basis that even a rough-and-ready distinction is better than nothing), the next issue is who should decide how and when to draw the distinction. One option is to set down rules in legislation. But rules are liable to be too blunt and inflexible an instrument.
A better option might be judicial discretion, exercisable perhaps on the basis of factors set out in legislation, at the permission stage of a judicial review claim. Already judges may refuse relief in judicial review proceedings on the basis that an adequate alternative remedy exists; but when a claimant has already availed of the alternative remedy, she can then proceed to judicial review (though see here on some of the complications). The difference here would be that a judge could decide at a preliminary stage that a claimant ought to proceed exclusively through the appeal or merits review route provided for. This would perhaps be closer to the sort of channeling of judicial oversight (as opposed to its exclusion) that judges tend to be more comfortable with. But these are only preliminary thoughts on an issue that, as Thomas and Tomlinson note, requires detailed, well-informed deliberation.