In Samia Wasif v Secretary of State for the Home Department; Mohammed Hossain v Secretary of State for the Home Department  EWCA Civ 82 the Court of Appeal highlighted the distinction between applications certified as "totally without merit" and the wider pool of applications which have been refused permission to apply for judicial review. The Court of Appeal made a number of general observations to assist judges with identifying those applications which should not only be refused permission but also certified as "totally without merit".
1. Key Points
- A claim will be "totally without merit" if it is "bound to fail" or "hopeless"
- Permission will be refused if the claim is "not arguable" or has "no realistic prospect of success" but this does not automatically mean that the claim is also "bound to fail"
- Judges should consider whether or not a claimant should be deprived of the opportunity to have an oral renewal hearing when deciding if a claim is "totally without merit"
- Reasons should properly address all the arguments raised in the grounds if the claim has been certified as "totally without merit"
- Separate reasons from those refusing permission should be given for a "totally without merit" certification
Claimants are generally entitled to request that a decision of the High Court or Upper Tribunal refusing permission to apply for judicial review be reconsidered at an oral hearing ('renewal hearing'). However, following changes introduced in 2013, if the High Court or Upper Tribunal has certified the claim as "totally without merit", the claimant will be precluded from requesting a renewal hearing.
In these appeals, the Appellants had both sought permission from the Upper Tribunal to apply for judicial review of a decision of the Respondent to refuse them leave to remain in the UK. The Upper Tribunal refused permission on the papers in both cases but also certified each claim as totally without merit which precluded the possibility of a renewal hearing. Both Appellants appealed that decision to the Court of Appeal.
The proper approach to be taken in considering whether to certify an application for permission to apply for judicial review as totally without merit was considered by the Court of Appeal in R (Grace) v Secretary of State for the Home Department  EWCA Civ 1191. However, the Court of Appeal took this opportunity to consider that question further.
Before dismissing the appeals, the Court of Appeal (Lord Dyson MR, Underhill and Floyd LJJ) considered the general question of totally without merit certification and made a number of observations regarding the proper approach.
"Not arguable" does not mean "bound to fail"
The Court confirmed that the criterion for deciding whether to grant permission is whether the claim is "arguable" or has "a realistic prospect of success" and that the criterion for totally without merit certification is whether the application is "bound to fail". Each criterion must mean something different otherwise all claims refused permission would necessarily be totally without merit as well – a result which could not have been intended by the relevant rules.
The Court therefore described the two categories of claims as follows:
(i) Not arguable / no realistic prospect of success: the claimant has identified a rational argument in support of his or her claim but the judge is confident that, even taking the case at its highest, it is wrong and should therefore be refused permission.
(ii) Bound to fail / hopeless: there is no rational basis on which the claim could succeed and it should therefore both be refused permission and certified as totally without merit.
Although not "black-and-white", the Court asserted that this distinction was "nevertheless real".
Purpose of a renewal hearing
Renewal hearings provide claimants with an opportunity to persuade a court that the decision to refuse permission on the papers was wrong because the claim does have a "realistic" chance of success. However, for those claims in the second category which are "bound to fail" because they reveal no rational basis on which the claim could succeed (unlike those cases in the first category), it necessarily follows that there is no such chance of persuading a court otherwise. Allowing a hearing in those circumstances would be a waste of the court's resources and so such claims should be certified as totally without merit.
General guidance for identifying totally without merit applications
Although distinguishing between the two categories of claim is a matter for the assessment of each individual judge, some general observations were set out by the Court of Appeal:
- Judges should not certify claims as totally without merit as the automatic consequence of refusing permission because the criteria are different.
- Judges should not certify claims as totally without merit unless confident after careful consideration that the case truly is bound to fail (in line with the Court's guidance in Grace).
- A renewal hearing provides the claimant with an opportunity to address the perceived weaknesses in the claim which led to the judge refusing permission on the papers (and which may not have been anticipated or addressed in the papers). Judges should only certify claims as totally without merit if satisfied that in the circumstances of the particular case a hearing could not serve such a purpose, and the claimant should get the benefit of any real doubt.
- Some judges might find it useful to ask whether they can conceive of a judicial colleague taking a different view about whether permission should be granted.
- Where, despite the convoluted presentation of a claim, the judge suspects that proper presentation might disclose an arguable basis of claim, the judge should not certify the claim as totally without merit bu
- It should instead refuse permission with reasons identifying the nature of the problem so as to give the claimant the opportunity to address it at a renewal hearing if they can. Alternatively, the judge might adjourn the permission application to an oral hearing.
- Judges should not certify claims as totally without merit on the basis of points raised in the summary grounds to which the claimant might have had an answer if given the opportunity.
The Court stated that judges must take "peculiar care" to properly address in their reasons all the arguments raised in the grounds if the claim has been certified as totally without merit. The Court also considered it "important in principle" that judges provide reasons for the totally without merit certification separately from the reasons for refusing permission.
This decision highlights that there is a subtle but "real" distinction between claims which should be refused permission and those which also warrant certification as totally without merit. Judges must consider a number of factors when considering whether a case is totally without merit and should be conscious of, amongst other matters, the purpose behind a renewal hearing. The guidance of the Court of Appeal makes it clear that the totally without merit certification should only be used in fairly limited circumstances and suggests that it is not likely to be a common occurrence.