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

At the permission stage of a judicial review, the court need only determine whether the claim has reasonable prospects of success. The court is not required to formulate the precise legal ground where the pleaded grounds overlap and raise arguable issues requiring determination at the substantive hearing. A claimant may pursue all grounds that are not hopeless. Questions concerning the legality of a change in immigration policy, transitional arrangements, legitimate expectation, fairness, consistency and article 8 may properly be left for the substantive hearing where they have reasonable prospects of success.

The claimant, a failed asylum seeker whose case had entered the legacy process, challenged the refusal of further representations made on 3 August 2012. He contended that his case should have been decided before changes to the Immigration Rules and administrative guidance in July 2011, and that fairness, legitimate expectation, consistency and article 8 required transitional arrangements.

The defendant relied on the reasons given in the refusal decision, including the claimant’s length of residence, connections with the United Kingdom and the absence of compelling compassionate circumstances. The application was a renewed application for permission to apply for judicial review. The central issue was whether the pleaded grounds had reasonable prospects of success.

1. Permission granted. The claimant was entitled to pursue all pleaded grounds because the court found that the case had reasonable prospects of success and none of the grounds was hopeless.
2. The court was not required at the permission stage to craft the particular ground of judicial review that most clearly fitted the case. The grounds overlapped and raised issues requiring detailed consideration at the substantive hearing.
3. The issues identified as requiring consideration included whether legacy cases had to be treated consistently, whether the defendant had unlawfully changed policy without transitional arrangements, whether the claimant had a legitimate expectation, and whether the decision was rational, fair, proportionate and compatible with article 8.
4. The court expressly left open whether this type of legacy case had a remedy and, if so, what its parameters were. It observed that the broader legacy issue might require consideration by the Court of Appeal and possibly the Supreme Court.
5. The usual order following the grant of permission was made. The matter was expedited, with directions to follow.

Not stated in the judgment.