The Queen (on the application of Rabia Begum) v Secretary of State for the Home Department

Permission to appeal in judicial review proceedings may be confined to specified issues. A further merits issue may be admitted conditionally, depending on the resolution of a threshold procedural issue. Where a principal ground was added by amendment without opposition, it may be arguable that a later dismissal for delay was impermissible. Permission may be refused where the lower court made no error of law, or where an issue was not relied upon in the amended grounds.

Rabia Begum applied for permission to appeal from the Administrative Court’s dismissal of her judicial review claim on grounds of delay. The principal ground, that she was not an illegal entrant, had been added by amendment allowed by Burton J after the Secretary of State declined to oppose it. The proposed appeal raised whether the later dismissal for delay was open, including in light of delay by the respondent, and, if not, whether the evidence established that she was an illegal entrant. Permission was also sought on compassionate circumstances and matters arising from her divorce.

Lord Justice Buxton granted permission to appeal on a limited and conditional basis.

1. The first issue deserving consideration was whether Stanley Burnton J could dismiss the claim for delay when the principal ground had been added by an earlier order of Burton J, approximately three months before, without opposition from the represented Secretary of State. The Court of Appeal could also consider whether the lower judge’s reliance on detriment to good administration was open to him in light of the respondent’s own history of delay.
2. Permission was granted on the question whether, if dismissal for delay was held to be impermissible, the evidence established or adequately proved that the applicant was an illegal entrant. That issue could be argued only if the Court of Appeal first concluded that the claim should not have been dismissed for delay.
3. Permission was refused on the compassionate circumstances ground. The Secretary of State had addressed the position of the applicant and her parents in a ministerial letter, and the lower judge had made no error of law in his treatment of that ground.
4. Permission was also refused in respect of the applicant’s divorce, because that matter was not relied upon in the amended grounds before the judge below.

The applicant was directed to file a further skeleton argument within fourteen days, with the relevant material concerning the amendment application and the evidence relied upon concerning illegal entry. The case was directed to the short-warned list before two Lords Justices, to be heard as soon as possible and no later than the end of the Easter term. The order was: permission to appeal granted limited as above. The transcript was to be supplied at public expense.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 60, Lord Justice Buxton granted limited permission to appeal and gave directions for the further hearing.
• Administrative Court: Stanley Burnton J dismissed the judicial review claim on 15 August 2001, principally on grounds of delay.