Rathakrishnan, R (On the Application Of) v Secretary of State for the Home Department

Where the Secretary of State agrees to reconsider a fresh-claim decision, the judicial review proceedings should normally end by quashing the challenged decision. They should not generally be stayed so that future decisions and future evidence can be challenged within the existing claim. A stay may be justified only in exceptional circumstances, or where the replacement decision is already before the court and the claimant has formulated an arguable challenge. Any exceptional stay must specify the procedure for applying to amend the grounds, address arguability or permission, and provide for the appropriate court fees. The Court of Appeal’s decision in R v Secretary of State for the Home Department, ex p Turgut did not establish a general rule requiring proceedings to remain on foot until later challenges had concluded.

The claimant, a Sri Lankan national, had exhausted his asylum appeal rights and made further representations. The Secretary of State initially declined to treat them as a fresh claim, and a subsequent decision was challenged by judicial review. Permission was granted after the court considered that the later decision might be formulaic. The Secretary of State then agreed to abandon that decision and reconsider the representations, together with a subsequently produced expert report, under paragraph 353 of the Immigration Rules.

The claimant sought a stay rather than an order quashing the decision, relying on R v Secretary of State for the Home Department, ex p Turgut. The issue was whether the existing proceedings should remain available for a possible challenge to the anticipated fresh decision.

1. Order. The Secretary of State’s decision was quashed. The representations were to be reconsidered, together with the expert report dated 6 December 2010, in accordance with paragraph 353 of the Immigration Rules. There was no order as to costs.
2. Normal course. Where a fresh decision has yet to be made and the Secretary of State undertakes to reconsider the matter, the existing judicial review proceedings should normally end. A claimant should ordinarily bring any challenge to the new decision by a fresh application, thereby complying with the permission filter and fee requirements.
3. Exceptional cases. The proceedings may remain on foot where the fresh decision is already before the court, or other exceptional circumstances justify that course. Examples may include a genuinely continuing issue of general importance or legal-aid difficulties in a detained case. It is generally unwise to preserve proceedings merely because a future decision might raise the same issue.
4. Procedure if a stay is granted. An order staying proceedings must make clear that an application for permission to amend the grounds is required. It must address the form and hearing method of that application, arguability or permission to amend, and payment of the appropriate fees.
5. Authorities. Turgut was concerned with efficiently dealing with a replacement decision already relied on by the Secretary of State, not with keeping proceedings alive for all possible future decisions. Its observation concerning later evidence had been overtaken by subsequent Court of Appeal decisions. The approach in R v Secretary of State for the Home Department, ex p Al Abi supported ending proceedings where the decision-maker had agreed to reconsider, subject only to rare exceptions.

First instance judicial review proceedings. The judgment describes earlier permission and renewal decisions, but no appeal from a lower court decision.