Idubo, R (on the Application of) v Secretary of State for the Home Department

A court considering whether to reinstate an application dismissed after the applicant failed to attend exercises a general discretion under Civil Procedure Rules, rule 23.11. It must consider the reason for non-attendance, delay in seeking reinstatement, and the underlying merits of the application. The merits are material because otherwise an unmeritorious application could be prolonged by repeated unsuccessful attendances and reinstatement requests. A substantial unexplained delay, an untruthful application notice, and an underlying claim with no arguable merit may jointly justify refusing reinstatement.

The applicant, an unsuccessful asylum seeker, had sought judicial review of a special adjudicator’s decision. Moses J dismissed that claim as plainly unarguable because the grounds amounted to an attack on the merits of the adjudicator’s credibility findings.

A renewed application was called on before Buxton LJ in April 2002. The applicant did not attend in time and the application was struck out. He later sought to reinstate it, asserting that he had received no notice of the hearing. The Court of Appeal considered the nature of its power to reinstate and whether the circumstances justified its exercise.

1. Application dismissed. Pumfrey J, delivering the judgment of the court, held that an application called on in court has been heard even if the applicant does not attend. The power to reinstate does not arise because of a single judge’s determination without a hearing. It arises from the general discretion in rule 23.11 of the Civil Procedure Rules to relist an application. Rule 23.8 permits the court, where appropriate, to deal with such an application without a hearing.

2. The discretion requires consideration of the explanation for non-attendance, delay in applying for reinstatement, and the merits of the underlying application. The court emphasised that underlying merits are necessarily relevant. Otherwise, an application could be perpetuated through repeated reinstatement requests following failures to attend.

3. The underlying judicial-review claim remained devoid of merit. The applicant’s further material merely challenged the special adjudicator’s factual and credibility assessment, and disclosed no ground for judicial review. The delay after the hearing before Buxton LJ was substantial and inadequately explained. The applicant had also failed to act on the court office’s prompt invitation to make a written reinstatement application.

4. The application notice’s assertion that no hearing notice had been received was found to be untrue. Taken with the absence of merits and delay, that feature provided no basis to reinstate the application. Lord Justice Judge agreed. There was no order for costs.

• Court of Appeal (Civil Division): dismissed the application to reinstate the renewed judicial-review application: [2003] EWCA Civ 1203.
• High Court, Administrative Court: Moses J dismissed the judicial-review application as plainly unarguable on 28 November 2001.
• Earlier Court of Appeal proceeding: Buxton LJ struck out the renewed application when the applicant failed to attend the hearing in time.
• Special adjudicator: rejected the asylum claim and upheld the Secretary of State’s certificate, with the consequence that no appeal lay to the Immigration Appeal Tribunal.