In the Wasif v Secretary of State for Home Department judgment (Samia Wasif and another v Secretary of State for Home Department  EWCA Civ 82), the Court made observations (which were intended for use by the Upper Tribunal as well as the High Court) in respect of totally without merit certifications which we list below.
The Court of Appeal defined the meaning of “totally without merit”, essentially as a case that is no more or less than bound to fail:
“In our view the key to the conundrum is to recognise that the conventional criterion for the grant of permission does not always in practice set quite as low a threshold as the language of “arguability” or “realistic prospect of success” might suggest. There are indeed cases in which the judge considering an application for permission to apply for judicial review can see no rational basis on which the claim could succeed: these are in our view the cases referred to in Grace as “bound to fail” (or “hopeless”). In such cases permission is of course refused. But there are also cases in which the claimant or applicant (we will henceforth say “claimant” for short) has identified a rational argument in support of his claim but where the judge is confident that, even taking the case at its highest, it is wrong. In such a case also it is in our view right to refuse permission; and in our experience this is the approach that most judges take. On this approach, even though the claim might be said to be “arguable” in one sense of the word, it ceases to be so, and the prospect of it succeeding ceases to be “realistic”, if the judge feels able confidently to reject the claimant’s arguments. The distinction between such cases and those which are “bound to fail” is not black-and-white, but we believe that it is nevertheless real; and it avoids the apparent anomaly [whereby all permission refusals would otherwise be marked “totally without merit”]”
- Judges should “certainly not” certify applications as “totally without merit” as an automatic consequence of refusing permission. The criteria are different.
- No judge should certify an application as “totally without merit” unless he or she is: “confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequence of his decision in the particular case.” (per Maurice Kay LJ in Grace)
- A case should only be certified where the judge is satisfied that a hearing could serve no purpose in allowing the claimant to address perceived weaknesses or omissions in the case.
- As a “thought-experiment” it may assist a judge to consider whether he or she can conceive of a judicial colleague taking a different view on the granting of permission. (The Court was careful, though, to stress that this was not a formal test – “the point of a renewal hearing is not that the claimant is entitled to another dip into the bran-tub of Administrative Court of Upper Tribunal judges in the hope of finding someone more sympathetic.”)
- Where a judge suspects that there may be an arguable claim, even if the point in question has not been pleaded properly or at all, then it should not be certified as “totally without merit”.
- A case should not be certified as “totally without merit” on the basis of a point raised in the summary grounds of defence to which the claimant may have an answer (given that at that stage the claimant would not have seen the summary grounds).
- Where a claim is certified as “totally without merit” then “peculiar care must be taken to ensure that all the arguments raised in the grounds are properly addressed” when the judge gives reasons for coming to his or her decision. Separate reasons should be given for the certification (as opposed to the refusal of permission), even if those separate reasons rest on what has been said previously. The reasoning need not be lengthy, but it should be structured.
- The Court expressed some doubt about the view expressed in previous authorities that the arguability of a claim can be affected by the nature and gravity of the issue. However, it was not called upon to decide this matter.
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