Mohebullah, R (on the application of) v Secretary of State for the Home Department

Permission to amend judicial review grounds should generally be refused where the original decision has ceased to be operative and the proposed amendment would substitute a challenge to a later decision after unjustified delay. The proper course is to issue fresh proceedings and seek permission on the merits. Allowing an amendment must not bypass the requirement that new grounds satisfy the arguability threshold for judicial review. Procedural notice requirements are relevant but may be outweighed by delay and the justice of the case.

The claimant sought judicial review of immigration decisions concerning his asylum and human rights claims. Permission had been granted on the mistaken basis that the Secretary of State had failed to respond to representations, although a response had been issued. A later decision of 17 March 2004 withdrew the earlier decision and rejected the claimant’s representations as not amounting to a fresh claim.

The claimant sought an adjournment and permission to amend the judicial review grounds so as to challenge the later decision. The court also considered whether to make a wasted costs order against the claimant’s legal representatives.

1. The application to adjourn and amend was refused. Under CPR 54 PD 11, seven clear days’ notice should be given before additional judicial review grounds are relied upon. That requirement was not complied with, although the breach was not by itself decisive.

2. The substantial delay was decisive. Following the Secretary of State’s decision of 17 March 2004, the sole ground on which permission had been granted had fallen away. Any application to amend should have been made promptly. A delay of more than three months was unjustified in the circumstances.

3. The proposed amendment would effectively delete the original claim and substitute a challenge to the later decision. The appropriate course was to bring fresh proceedings and seek permission on the merits. Amendment would otherwise bypass the arguability requirement for permission to bring judicial review proceedings.

4. The court declined to make a wasted costs order immediately because counsel had not had a reasonable opportunity to obtain instructions and respond. The matter was listed for a notice to show cause by 30 July 2004. Costs not found to be wasted were to be borne by the claimant.