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

Permission for judicial review, and permission to amend, should be granted where the claimant’s arguments have reasonably arguable merit and raise serious issues requiring determination at a substantive hearing. The court should identify the proper forum for resolving competing legal arguments and should not determine their ultimate merits at the permission stage.

Where the purpose of the judicial review is to secure the claimant’s return to the United Kingdom to participate in related appeal proceedings, the judicial review should be expedited. It may also be appropriate to indicate that the related tribunal proceedings should not proceed before the judicial review is resolved.

The claimant challenged matters arising from his removal from the United Kingdom, including whether there remained an outstanding right of appeal and whether steps should be taken to return him so that he could participate in proceedings before the Asylum and Immigration Tribunal. Permission had previously been refused on the papers.

The court reconsidered the matter after examining a letter from the Tribunal and submissions concerning the proper interpretation of Regulation 26, including whether the Regulations excluded an appeal where independent evidence of a two-year relationship had not been produced. The issues before the court were whether permission and permission to amend should be granted, and what consequential directions should follow.

1. Permission and amendment. Permission to apply for judicial review and permission to amend were granted. The court had initially taken a different view on the papers, but the Tribunal’s letter disclosed two grounds for accepting that an outstanding right of appeal existed. One argument had not previously been advanced by the claimant. The other, concerning the absence of an apparent regulatory exclusion based on failure to produce independent evidence of a two-year relationship, had been raised in earlier correspondence.
2. Merits to be determined substantively. The claimant’s arguments had reasonably arguable merit and raised serious issues requiring consideration at the substantive hearing. The proper forum for resolving the competing arguments was the substantive judicial review hearing, rather than the permission stage.
3. Expedition and related proceedings. The judicial review was ordered to be expedited because its purpose was to establish whether the Secretary of State should take steps to return the claimant to the United Kingdom for the appeal. The court stated that it would be unfortunate if the Tribunal proceeded with the appeal before the judicial review had been resolved, although the court could not control the Tribunal’s proceedings.
4. The Secretary of State was allowed the usual 35 days to serve detailed grounds. The substantive hearing was estimated at three quarters of a day, and costs were reserved.

The judgment records that permission had previously been refused on the papers. The court reconsidered the matter after oral submissions and granted permission and permission to amend. The judgment does not record an appeal from this decision.