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

A judicial review claimant owes the court a duty of full and frank disclosure of all material facts, documents and procedural obstacles. A failure of candour may itself vitiate permission to proceed, particularly where permission was granted conditionally. The Administrative Court is ordinarily a court of review, not a court of first instance for issues which have not first been advanced to the primary decision-maker. A fresh claim requires more than the passage of time or an application which restates the earlier case. Direct judicial review on Article 8 grounds remains exceptional where an appropriate immigration decision-maker and appellate tribunal have already considered the claim.

The claimant sought judicial review concerning his removal and his wish to remain in the United Kingdom with his wife and children, who had refugee status. Permission had been granted conditionally because the initial grounds suggested a materially different immigration history from the true history, including earlier deportations, a conviction for drug offending and unlawful re-entry in breach of a deportation order.

The Secretary of State applied to set aside permission. The claimant also argued that later correspondence amounted to a fresh claim, relied on the Immigration Rules concerning spouses of refugees, and raised Article 8 and changed-jurisprudence arguments.

1. Permission set aside. The claimant’s grounds materially suppressed his immigration history and omitted material documents, including decisions recording that history. This amounted to a want of candour and disclosure sufficient by itself to vitiate the grant of permission.
2. Although CPR 54.13 ordinarily bars an application by a defendant to set aside permission, the court retained jurisdiction because permission had been granted on an express condition allowing such an application. Had that route not been available, the court would have refused relief in its discretion.
3. The claimant’s later letters did not identify a genuinely new claim. They substantially repeated the earlier Article 8 case. The passage of time and consolidation of family life did not, in these circumstances, make removal an abuse of power.
4. The court declined to determine whether the change in the approach to Article 8 identified by reference to Huang [2007] UKHL 11, together with later medical evidence or the possible revocation of the deportation order, created or contributed to a fresh claim. Those issues had not first been advanced to the appropriate decision-maker.
5. The Administrative Court is ordinarily a court of last resort in judicial review, not a court of first instance for trying innovative immigration and Article 8 issues. The earlier tribunal decision had become final, and the claimant’s direct Article 8 challenge could not succeed in this court.
6. Permission was set aside pursuant to the conditional liberty to apply. There was no order for costs throughout.

• Immigration Appeal Tribunal: An appeal by the claimant against refusal of leave was allowed by an adjudicator, but the Secretary of State’s appeal was subsequently allowed by a tribunal in October 2003, which held that requiring the claimant to return to Pakistan and apply in the ordinary way struck a fair balance under Article 8.
• Court of Appeal: The claimant’s application for permission to appeal failed, leaving the tribunal decision final.
• High Court (Administrative Court): Permission to bring judicial review was set aside under the conditional liberty to apply.