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

Permission to apply for judicial review may properly be refused where, despite apparent merit in the underlying challenge, success would provide the claimant with no substantial or practical remedy. The court’s supervisory jurisdiction cannot be used to create a new immigration status which the claimant has not formally applied for and cannot obtain merely by quashing earlier decisions. A claim may therefore be rendered academic by subsequent events, including the loss of a sponsor’s authorisation and the claimant’s failure to make the necessary later application.

The claimant sought judicial review of decisions refusing him leave to remain as a student under the Tier 4 scheme and refusing exceptional leave outside the Immigration Rules. The application was out of time in relation to the earlier decision, but the court considered that there were substantial and viable grounds of challenge, including arguments concerning the effect of delay by the Secretary of State, the 60-day period for finding a substitute sponsor, and the rejection of a further application on a technical ground.

While the claim was pending, the proposed sponsor’s status was revoked. The claimant also failed to make a formal application in relation to a later institution within the requisite time. The central issue was whether permission and an extension of time should nevertheless be granted where a successful claim could no longer achieve the immigration status sought.

1. The application for permission was refused, notwithstanding the court’s view that the underlying challenges would otherwise have had substantial prospects of success. The claim had become completely academic because quashing the September or November 2009 decisions could not give the claimant permission to remain in the United Kingdom for his current studies.

2. The court’s supervisory jurisdiction could not create the required immigration status. The claimant’s only effective route was to make an appropriate application to the Secretary of State in the ordinary way.

3. The court considered that there were viable arguments that a student whose sponsor had been removed from the register should receive 60 days to find a substitute sponsor, particularly where the claimant had applied before his existing visa expired but the application was not considered until afterwards. Treating the claimant otherwise could have placed him at an unfair disadvantage through no fault of his own.

4. There was also a serious argument that rejecting the later application solely because a mandatory box had not been ticked was unjustified where the substantive information had been supplied. Those observations did not justify permission once subsequent events meant that judicial review could provide no substantial remedy.

5. The court declined to extend time for the September 2009 decision because the claim was academic. The transcript was directed to be expedited.

The judgment records that an earlier judge had refused permission on paper. The present court disagreed with that decision on the arguability of the in-country appeal point and the delay issue, but ultimately refused permission because the claim had become academic.