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

Permission to apply for judicial review should be refused where the grounds have fallen away or do not disclose an arguable error of law. A failure to consider representations is remedied, for the purposes of the pleaded claim, when the Secretary of State subsequently considers them; any challenge to the later decision should be brought in separate proceedings. A claimant cannot obtain permission based on a possible future removal decision or an uncertain future position of the Secretary of State. Where removal policy ordinarily links the position of a non-estranged spouse to the principal claimant’s case, judicial review is premature unless there is evidence of an intention to depart from that practice.

This was a renewed application for permission to bring judicial review proceedings. Permission had previously been refused on the papers by His Honour Judge Vosper QC on 30 November 2012.

The claimant challenged the Secretary of State’s alleged failure to consider representations made on 20 April 2012, and argued that her removal should be deferred until the determination of her husband’s asylum claim. The Secretary of State subsequently considered the claimant’s representations, including further representations said to have been made in May 2012, and rejected them by a decision letter dated 7 December 2012. The central issues were whether any arguable ground remained on the pleaded case and whether the proposed challenge concerning removal was premature.

1. Permission refused. The claim, as currently constituted, disclosed no arguable ground for judicial review.

2. The challenge based on the alleged failure to consider the claimant’s representations fell away because the Secretary of State had subsequently considered the representations and issued the decision letter dated 7 December 2012. Any challenge to that later decision, concerning the claimant’s freestanding asylum and humanitarian protection claim, would require separate judicial review proceedings.

3. The claimant could not obtain permission on the basis that the Secretary of State might decide in the future that the parties’ separation meant that she was no longer a dependant and that removal could proceed independently of her husband’s claim. The Secretary of State’s position was not yet known, and the court would not determine a hypothetical future challenge.

4. The court understood the Secretary of State’s standard practice to be that, where husband and wife were not estranged or separated, the wife and dependants would not be removed until the husband’s claim had been finally determined. There was no evidence that the Secretary of State intended to depart from that practice in this case. If removal were later proposed before the husband’s claim was finally determined, the claimant would have an opportunity to bring separate proceedings.

5. The claimant was strongly urged to obtain urgent legal advice, particularly because time limits might affect any challenge to the 7 December 2012 decision. The court made no order requiring her to leave the United Kingdom.

• High Court (Administrative Court): His Honour Judge Vosper QC refused permission on the papers on 30 November 2012.
• High Court (Administrative Court): On renewal, permission was refused by Robert Jay QC, sitting as a Deputy High Court Judge.