Yoon, R (on the application of) v Asylum & Immigration Tribunal & Anor

A judicial review claim against immigration tribunal decisions requires an arguable procedural or other public law error. Where the claimant identifies no impropriety, and the tribunal’s decision is technically correct on the applicable appeal provisions, permission should be refused. The court may nevertheless draw the Secretary of State’s attention to exceptional hardship caused by administrative or professional errors and invite consideration of discretionary relief. Such observations do not alter the legal outcome or create an appeal right.

The claimant and his family became overstayers after his solicitors failed to apply to extend his leave. The Secretary of State later accepted that an initial refusal of a work permit was erroneous, but refused further leave on the basis of overstaying.

An Immigration Judge dismissed the claimant’s appeal. The Asylum & Immigration Tribunal refused permission to appeal, holding that there was no valid appeal and no real prospect of a different decision. The Administrative Court, exercising its function under section 103A of the Nationality, Immigration and Asylum Act 2002, also refused reconsideration. The claimant then sought judicial review of the tribunal decisions, alleging serious procedural impropriety.

1. Claim dismissed. The application for permission to seek judicial review of the decisions of the Asylum & Immigration Tribunal and the Immigration Judge was unarguable and was dismissed.

2. The claimant had suffered serious mishandling by his solicitors and the Secretary of State. That did not establish procedural impropriety by the Immigration Judge or the Tribunal. The decisions could not be faulted merely because their strict application of the statutory scheme produced an unfortunate result.

3. The claimant’s challenge arose from the conclusion that, as an overstayer without existing leave, he had no in-country right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The earlier reconsideration decision under section 103A had likewise identified no apparent error of law or real possibility of a different tribunal decision.

4. The court made significant observations, without treating them as part of the basis for granting relief. The Secretary of State had undertaken a full reconsideration of the claimant’s file. She was urged to consider whether her discretionary powers could permit the claimant and his family to remain while he performed the skilled work authorised by his work permit.

1. High Court (Administrative Court): King J dismissed the application for reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002, finding no apparent error of law in the Tribunal’s conclusion that there was no right of appeal under section 82.
2. High Court (Administrative Court): Black J refused permission on the papers, concluding that the claimant had not shown gross procedural unfairness or a flagrant denial of a fair trial.
3. High Court (Administrative Court): Collins J directed that the claim be amended so that the Asylum & Immigration Tribunal or Immigration Judge was named as defendant, observing that a claim might be possible if serious procedural impropriety were established.
4. High Court (Administrative Court): Wilkie J dismissed the renewed application for permission to seek judicial review.