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

Where an applicant is already an unlawful overstayer, the Secretary of State’s failure to make a removal decision at the same time as refusing leave to remain does not ordinarily cause continuing prejudice. Judicial review proceedings brought merely to obtain an immediately appealable removal decision may therefore be adjourned where a decision is expected shortly and the substantive issues may become academic. The court should adopt the course that is fair and proportionate, avoiding unnecessary legal costs and wasted court time. Any later challenge should address the Secretary of State’s actual decision, by appeal or judicial review as appropriate.

Five judicial review applications were brought against the Secretary of State for the Home Department. The common issue was whether the Secretary of State had acted unlawfully by failing to make a removal decision alongside decisions refusing applications for leave to remain. Most claimants were unlawful overstayers; Mr Zorrila had never held leave to enter or remain. Additional issues concerned revocation of a deportation order and the treatment of Mr Zorrila’s application.

The Secretary of State indicated that further submissions could be made within 14 days and that decisions would be issued within three months. The central case-management question was whether the court should determine the wider arguments immediately or defer them until those decisions had been made.

1. The applications were adjourned. The claimants were to make any further submissions within 14 days, after which the Secretary of State was expected to decide the relevant matters within three months.
2. The court distinguished Mirza v Secretary of State for the Home Department [2010] EWHC 2002 Admin on the facts. In Mirza, the applicants had applied before their existing leave expired and the Secretary of State’s failure to act had converted them into overstayers. The present claimants were already overstayers, so the alleged failure caused no continuing prejudice identified before the court.
3. The court noted the practice reflected in Suphachaikosol v Secretary of State for the Home Department [2010] EWHC 1817, under which failure to decide removal simultaneously with leave to remain was not treated as unlawful. The court considered that repeated litigation had not achieved the intended reduction in claims and adopted a practical message: proceedings were pointless where they would merely result in an adjournment pending the Secretary of State’s decision.
4. Determination of the remaining arguments, including challenges relating to Article 8 and paragraph 395C of the Immigration Rules, was deferred. Once actual decisions had been made, the claimants could challenge them by appeal or, where appropriate, judicial review. Costs were reserved for determination on paper after the other matters had been resolved.

The judgment was a first-instance decision of the Administrative Court. It referred to earlier Administrative Court decisions, including Mirza v Secretary of State for the Home Department [2010] EWHC 2002 Admin and R (Daley-Murdock) v Secretary of State for the Home Department [2010] EWHC 1488, in which permission to appeal had reportedly been granted.