MD (China) & Ors, R (on the application of) v Secretary of State for the Home Department

Judicial-review proceedings should not continue merely to obtain a declaration where their practical purpose has been achieved and the remaining vindicatory benefit is illusory. An informal complaints procedure may provide an adequate route for resolving a significant part of a public-law dispute; it need not replicate every function of judicial review.

The court should consider available compensation, apology, administrative reform, alternative redress and the proportionality of further costs. Whether administrative delay violates Article 8 of the European Convention on Human Rights remains fact-specific. That issue need not be decided where the delay is admitted, compensation is available and further proceedings would not clarify the law or assist other cases.

Five successful asylum seekers brought judicial-review proceedings concerning delays in receiving status papers. They claimed that the delays interfered with rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol. By the time of the hearing, all papers had been issued. The Secretary of State had admitted unacceptable maladministration, apologised, taken steps to prevent recurrence and initiated an internal complaints procedure capable of assessing compensation.

Treacy J held that the proceedings had become pointless and disproportionately expensive, but stayed rather than dismissed them, preserving the possibility of revival if the complaints procedure could not resolve a genuinely necessary issue: [2010] EWHC 1015 (Admin). The appeal concerned the claimants’ asserted entitlement to a judicial declaration, an effective remedy under Article 13, and continuation of the proceedings as test cases.

1. Disposition. The appeals were dismissed. Treacy J was correct to stay the proceedings rather than dismiss them, since a genuinely unresolved issue could still be brought back before the court.
2. Alternative redress. The internal complaints procedure was not independent, but it was structured and capable of addressing actual financial loss, exceptional non-financial loss, apology and explanation. It provided for review and possible referral to the Parliamentary Ombudsman. The court endorsed the broader approach illustrated by Cowl v Plymouth City Council [2001] EWCA Civ 1935: it is too narrow to ask whether an informal complaints process technically fulfils every function of judicial review. Except for good reason, judicial review should not proceed where a significant part of the dispute can be resolved outside litigation.
3. Article 8. The question whether delay in issuing status papers violates Article 8 is fact-specific. The lower court had relied on Anufrijeva v Southwark London Borough Council [2004] 2 WLR 603 in treating serious consequences or serious prejudice as relevant. The Court of Appeal accepted that delay could, depending on the facts, violate Article 8, but held that prolonging these proceedings would not assist in defining a general test.
4. Vindication and effective remedy. Appropriate extra-judicial acknowledgement may provide adequate vindication without compensation, as illustrated by R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. The admitted maladministration, apology, available compensation and administrative reforms meant that a declaration would add no material benefit. Staying the proceedings also preserved a possible judicial remedy, so Article 13 did not require continuation of pointless litigation.
5. Test cases and costs. The proceedings would not determine a point of principle or materially assist the other cases identified by the claimants. Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 concerned civil litigation and unwilling parties to mediation, and did not govern these judicial-review proceedings. Further expenditure would be disproportionate.

1. Court of Appeal (Civil Division). The court dismissed the appeals and upheld the stay of the proceedings: [2011] EWCA Civ 453.
2. High Court (Administrative Court). Treacy J held that the proceedings had become pointless and disproportionately expensive, but stayed them rather than dismissing them, with the possibility of revival if necessary: [2010] EWHC 1015 (Admin). Laws LJ granted permission to appeal.