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

Permission to apply for judicial review requires an arguable basis for challenging the decision. Where an applicant has succeeded under Article 8 and has received discretionary leave in accordance with applicable policy, the grant need not be indefinite leave to remain unless the earlier decision required that result. A claimant who has received the immigration status and associated benefits to which she is entitled cannot establish an arguable challenge merely by seeking a more favourable form of leave.

The claimant renewed an application for permission to apply for judicial review after permission had been refused on the papers. She had succeeded before the Asylum and Immigration Tribunal on Article 8 grounds in an appeal concerning refusal of indefinite leave to remain as a bereaved spouse.

The Secretary of State subsequently granted her discretionary leave to remain for three years, with permission to work, use public services and travel abroad. The issue was whether there was any arguable basis for challenging the grant of limited discretionary leave rather than indefinite leave to remain.

1. Permission refused. The claimant had no realistic or arguable prospect of succeeding in judicial review.
2. The Article 8 appeal had been allowed on Article 8 grounds only. The Secretary of State’s grant of discretionary leave from 7 September 2009 to 7 September 2012 was in line with Government policies and practices for a person who had succeeded in that way.
3. The claimant had received what she was entitled to as a result of the tribunal’s determination. She was lawfully present, could work, use the National Health Service and other local authority services, and could travel abroad and return subject to the relevant checks.
4. The tribunal’s decision did not entitle the claimant to indefinite leave to remain. Towards the end of the leave period she could seek renewal, and a refusal of renewal would carry a right of appeal as understood by the court.
5. The court declined to make any further order under Part 44.14 of the Civil Procedure Rules. The existing costs order made by the earlier judge was left unchanged, and the judgment transcript was directed to be provided to the claimant at public expense.

1. High Court (Administrative Court): Permission had previously been refused on the papers by Mr John Randall QC, sitting as a deputy judge. On renewal, the application was refused by Mr C M G Ockelton, sitting as Deputy Judge of the High Court, under [2010] EWHC 2483 (Admin).