Sehwerert, R (on the application of) v Sectretary of State for the Home Department

Interim proceedings should not ordinarily be used to obtain final mandatory relief, such as an order requiring an entry clearance officer to grant a visa. Where an important application is made at very short notice without the respondent’s participation, relief should be granted only where the claim is obviously well-founded and an overriding injustice would otherwise result. The normal course in judicial review is to require the proper decision-maker to reconsider the matter according to law. Practical inconvenience, disruption, or the availability of a less satisfactory alternative will not usually justify dispensing with due process.

A Cuban citizen sought entry clearance to attend meetings in London arranged by Members of Parliament concerning imprisoned co-defendants. The entry clearance officer refused the application, relying primarily on paragraph 320(2)(b) of the Immigration Rules. The Upper Tribunal refused permission to apply for judicial review and refused interim relief. Following an oral hearing, Upper Tribunal Judge Jordan maintained that decision and refused permission to appeal. The applicant then sought urgent relief in the Court of Appeal requiring the grant of a visa or reconsideration of the application. The central issue was whether such relief should be granted on a few hours’ notice without submissions from the respondent.

Underhill LJ delivered the principal judgment. Beatson LJ agreed and added a short observation; Patten LJ agreed with both judgments.

1. The application for interim relief was refused. Although described as interim, the relief sought was in substance a final mandatory order requiring the grant of a visa. Such an order was, in the court’s experience, unprecedented. The normal remedy in a judicial review case would be a direction to the proper decision-maker to reconsider the decision according to law.
2. The court would not make an important order on a few hours’ notice without a proper opportunity for the respondent to present submissions or evidence. Dispensing with that aspect of due process would require both an obviously well-founded claim, with no realistic prospect of a contrary submission succeeding, and an overriding injustice if relief were withheld.
3. Neither condition was established. The legality of the entry clearance decision was not straightforward. Nor was there a grave injustice requiring immediate relief. The meetings could take place by video link or be rescheduled, even though those alternatives would be less satisfactory and disruptive. The inconvenience and delay did not outweigh the imperative interest of deciding the matter fairly.
4. The court noted, though it was not central to the decision, that the urgency might have been reduced if the application had been made earlier, particularly since a similar application had been refused in January.
5. The respondent was directed to lodge written submissions on the application for permission to appeal within 14 days. The permission application was then to be considered on the papers, with further directions on urgency only if expressly sought and supported by reasons. Beatson LJ considered it desirable that the position under rule 320(2) of the Immigration Rules should be clarified.

• Court of Appeal (Civil Division): in [2014] EWCA Civ 1415, refused the urgent interim relief application and directed the respondent to file written submissions on permission within 14 days.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kekic refused permission to apply for judicial review and interim relief on 3 September 2014. After an oral hearing on 4 September, Upper Tribunal Judge Jordan reached the same conclusion and refused permission to appeal.