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

Judicial review proceedings ordinarily should not continue where the defendant has agreed to reconsider the challenged decision. Once reconsideration is accepted for pragmatic reasons, deciding whether the original decision was unlawful will generally be an academic and wasteful exercise. A stay or continuation of the proceedings to accommodate a challenge to a later decision is justified only in exceptional circumstances. The claimant should ordinarily pursue any challenge to the later decision through fresh proceedings, subject to the ordinary permission and procedural requirements.

The claimant sought judicial review of decisions stating that she had no basis to remain in the United Kingdom and rejecting further submissions. After proceedings were issued, the Secretary of State agreed to reconsider the claimant’s case and invited her to withdraw the claim. The claimant declined, seeking a determination on the merits. The court therefore considered whether the proceedings should continue or be stayed pending reconsideration, and what order should be made.

1. Academic proceedings. The Secretary of State’s agreement to reconsider the challenged decision meant that determining whether the original decision was wrong or irrational would no longer have practical effect. The court would not undertake that academic inquiry.
2. Continuation or stay. The principles identified by Ouseley J in Rathakrishnan [2011] EWHC 1406 (Admin) applied. It would be wholly exceptional to keep the existing judicial review proceedings on foot so that a claimant could challenge a different later decision, based on different evidence, without complying with the ordinary procedural and fee requirements. No exceptional circumstances existed. In particular, there was no need for urgent injunctive relief.
3. Order. The appropriate course was to grant the claimant permission to withdraw the current claim, rather than dismiss it. She remained free, if necessary, to bring fresh judicial review proceedings concerning the further decision. No order was made as to costs.
4. The judge noted that the Secretary of State might wish to consider the claimant’s assertion that immediate family members had been granted leave to remain while she had been treated differently. That observation formed no part of the order.