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

Permission for judicial review should be granted where the claimant’s case appears problematic but cannot be said at the permission stage to be bound to fail. The court must assess the pleaded challenge without determining finally whether it will succeed. Where the challenged decision may have applied an outdated legal test, and the Secretary of State’s position has not clearly adopted the reasoning of an earlier decision-maker, an arguable public law issue may arise. Permission may be granted against the public authority responsible for the challenged decision, rather than another decision-maker whose decision is not under challenge.

The claimant, an alleged 16-year-old orphan in Ethiopia, sought entry clearance to join her uncle in the United Kingdom. She challenged the Secretary of State’s refusal to consider the matter without payment of the relevant visa fee. A previous application had been refused by a deputy High Court judge on the papers.

The legal framework had changed in April 2008. The entry clearance officer no longer had power to waive the fee, although the Secretary of State retained a discretion. The renewed application concerned a letter dated 18 August 2008, which stated that the claimant’s case could not be considered until an application was lodged and the fee paid. The central issue was whether the proposed judicial review claim was arguable or bound to fail.

1. Permission granted. The claimant was granted permission to apply for judicial review against the Secretary of State, but permission was refused against the entry clearance officer.
2. The claimant’s case was likely to be problematic, but it was not possible at the permission stage to conclude that it was bound to fail. That was sufficient to justify permission.
3. The Secretary of State had not clearly adopted the entry clearance officer’s earlier reasoning. If she had done so, that reasoning might be challengeable because it applied destitution as the relevant test, although that test no longer applied after April 2008.
4. The court did not finally determine whether the uncle-and-niece relationship fell within the Immigration Rules, whether Article 8 could assist, or whether the claimant could rely on the Entry Clearance Guidance. Those matters remained for the substantive proceedings or reconsideration.
5. The claimant was directed to lodge within 21 days a summary of the case as it then stood. The Secretary of State was permitted to lodge detailed grounds within 35 days thereafter. The Secretary of State was also permitted to participate in the claim, having not acknowledged service.

The renewed application followed refusal of permission by Mr CMG Ockelton, sitting as a Deputy Judge of the High Court, on 31 October 2008. The Administrative Court granted permission against the Secretary of State.