The appellant was a Jamaican national who had entered the United Kingdom on 22 October 2002, aged 43. The appellant was granted temporary leave, subject to conditions. The appellant was required as a condition of her temporary admission to report on 30 October 2002. The appellant failed to report and absconded, proceeding to live as an illegal immigrant in the UK for approximately ten years. The appellant eventually made an application for leave to remain on 6 November 2012. The Secretary of State refused the application as it was believed that the appellant could not establish her case under Immigration Rules or by reference to Article 8 of the ECHR. No right of appeal was accorded to the appellant.
The appellant issued a claim form seeking permission to apply for judicial review of the decision. The application was considered on the papers by Parker J who refused permission to apply for judicial review on 29 August 2013. In his reasons he stated that the “case is considered to be totally without merit” [“TWM”].
The appellant was granted permission to appeal Parker J’s decision before the Court of Appeal. The appeal contained issues surrounding the Immigration Rules and Article 8, as well as a request for clarification on the TWM test. The Court of Appeal refused to grant permission to hear the appeal on all three grounds and instead chose to focus on the approach to which a judge of the Administrative Court or the Upper Tribunal was required to adopt when certifying that an application for permission to proceed with a claim for judicial review was TWM.
Handed down by Maurice Kay LJ
The appellant submitted that when invoking TWM in instances that could deny a non-abusive claimant the opportunity to make oral submissions, a stringent meaning must be given to TWM so that a “finding of TWM should not be made unless the claim is so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made”. The appellant also emphasised the “acknowledged potential of oral advocacy to enhance persuasiveness” (Sengupta v Holmes  EWCA Civ 1104 per Laws LJ at paragraph 38).
Kay LJ considered Bhamjee v Forsdick  1 W.L.R 88 in the context of “totally without merit” first entering the civil procedure lexicon in the context of civil restraint orders. Kay LJ acknowledged its origin within the jurisprudence of civil restraint orders at paragraph 2.1 of the Practice Direction, which provides: “A limited civil restraint order may be made by a judge of any court where a party has made two or more applications which are totally without merit”. The wording was provided so as to prevent the mischief of myriad, abusive, or vexatious claims and to place a restriction in the form of a civil restraint order in relation to future litigation.
CPR 52.3(4) was amended by the insertion of (4A) in 2006. CPR 52.3(4A) enabled further discretion to refuse applications for the reconsideration of a decision at an oral hearing where they are considered TWM.
Kay LJ considered the purpose of the CPR 54.12.7 in his judgment, and stated that “it would defeat the purpose of CPR 54.12.7 if TWM were to be given the limited reach for which [the appellant] contends. It would not produce the benefits to the public authorities, the Administrative Court or its other users which it was intended to produce.”
Kay LJ provided guidance on the discretion as to whether an application was TWM “Although the court always seeks to do justice, the purpose of ‘totally without merit’ is to enable the court to root out claims which are bound to fail…I would construct that phrase as meaning bound to fail”
Kay LJ stated that this guidance would have two safeguards:
- “No judge will certify an application as totally without merit unless they are confident after careful consideration that the case is bound to fail”; and
- The claimant is still able to have access to a judge of the Court of Appeal who, with even greater experience and seniority, would approach the application on an independent basis and take the same level of care.
The Appeal was dismissed.
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