Doloswala & Anor, R (on the application of) v Secretary of State for the Home Department

Permission to apply for judicial review will ordinarily be refused where the challenged decision has been made or withdrawn and continuation would serve no practical purpose. The court cannot direct the Secretary of State to grant indefinite leave to remain, since that decision falls within the statutory administrative function entrusted to the Secretary of State. Errors and delay in immigration administration do not, without more, establish an arguable claim for damages for breach of Convention rights; the conduct must reach the necessary threshold of seriousness. Costs remain discretionary. Although the ordinary rule may require a claimant refused permission to pay the defendant’s costs of preparing an acknowledgement of service, that rule may be displaced where proceedings were reasonably issued to secure relief and the defendant’s errors were corrected only after proceedings began.

The claimants, a British citizen and his wife, sought permission to apply for judicial review concerning delay and errors in processing the wife’s immigration applications and certificate of approval to marry. The Home Office had confused the wife with an asylum claimant who had used her lost passport, wrongly addressed correspondence, refused the certificate without receiving a response, and later accepted the identity error.

After proceedings were issued, the certificate of approval was granted and the Secretary of State offered to reconsider the application for further leave to remain and pay reasonable costs. The claimants also sought substantial compensation for alleged breaches of Articles 3, 5, 6, 8, 12 and 14 of the European Convention on Human Rights, and contended that indefinite leave to remain should be granted. Permission had been refused on the papers by Calvert-Smith J, and the claimants renewed the application orally.

1. Permission refused. The grant of permission to marry had already provided the relief sought on that issue. The Secretary of State had also agreed to reconsider the flawed decision on further leave to remain. Judicial review would therefore serve no useful practical purpose.
2. The court’s role was limited to reviewing the legality of decisions made by the Secretary of State. It could not usurp the Secretary of State’s statutory function by directing that indefinite leave to remain be granted. Any future failure to comply with public-law principles could be challenged in proceedings directed to that later decision.
3. The claim for substantial compensation was not arguable on the facts. The Home Office had made errors and matters could have been handled better, but the failures did not constitute the gross incompetence or gross delay required to support the alleged damages claims. The court did not underestimate the anxiety and serious impact caused by immigration restrictions.
4. The defendant’s application for the costs of its acknowledgement of service was refused. Although the ordinary rule is that a claimant refused permission bears those costs, it was inappropriate to apply that rule where, when the claim was issued, the certificate had not been granted and the further-leave decision was accepted to be flawed. Those matters were rectified only after proceedings began, and the claimants had incurred expenses before the certificate was issued.

No order for costs was made.

The judgment records that Calvert-Smith J refused permission on the papers on 11 June 2009 and described the application as totally without merit. The claimants renewed the application, which was refused by Walker J after an oral hearing.