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

A judicial review claim is a remedy of last resort. It cannot be used to re-argue an issue that was available, and should have been pursued, in an appeal. A claimant cannot extend the time for judicial review indefinitely by sending successive pre-action protocol letters and challenging replies that contain no fresh substantive decision. Correspondence explaining why an earlier decision remains correct does not ordinarily restart time. Any extension of time depends on the circumstances, including whether the case raises a genuine public-interest issue and whether the delay is properly explained.

The claimant, a Pakistani national, challenged the refusal of his application for leave to remain under the Tier 1 post-study work route. His appeal against that refusal had been dismissed, and permission to appeal to the Court of Appeal had later been granted, but the appeal was abandoned.

Following Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, the claimant sought review under a policy concerning maintenance requirements. The Secretary of State decided that he did not qualify. The claimant later sent further pre-action protocol letters and argued that the resulting correspondence constituted fresh decision-making. The central issues were whether judicial review was an impermissible attempt to revive the abandoned appeal, whether a fresh decision had been made, and whether time should be extended.

1. Application refused. The claimant’s proposed challenge concerned the same issue that had been pursued in the earlier appeal: whether the requirement for authenticated internet bank statements was an Immigration Rule rather than guidance which had to be laid before Parliament. The point was arguable under the approach identified by Lord Dyson in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33, but its arguability did not overcome the procedural difficulty.
2. Judicial review is a remedy of last resort. It was not open to the claimant to re-argue a point which could and should have been pursued in the appeal, which had been abandoned in 2010.
3. The only relevant subsequent decision was the Secretary of State’s decision of 1 April 2011 that the claimant was not entitled to a review under the post-Pankina policy. The later letters of 5 April and 28 May 2012 contained reasons for maintaining the earlier decisions. They did not contain substantive decisions and therefore did not restart time.
4. Successive pre-action protocol letters cannot indefinitely extend the time for judicial review by eliciting explanations of an earlier decision. The claimant knew of the right to challenge the 1 April 2011 decision and accepted that it could have been challenged earlier on the same grounds.
5. The possibility of extending time by reference to R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [2000] Env LR 221 did not assist. That case concerned an important public-interest challenge involving alleged failure to implement the Habitats Directive and did not involve comparable delay or difficulty in identifying the proper time for proceedings.

The application for permission to apply for judicial review was refused. The claimant was granted detailed assessment of his costs.

The judgment records that the claimant’s appeal against the original refusal of leave to remain was dismissed on 31 March 2009. Reconsideration was ordered on 8 July 2009, and the decision stood. The Court of Appeal granted permission to appeal on 16 December 2010, but that appeal was abandoned. The present court refused the renewed application for permission to apply for judicial review.