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

Judicial review claims must be brought promptly and ordinarily no later than three months after the decision challenged. An unexplained delay of several years cannot be justified by characterising an earlier refusal as continuing. Applications must be properly evidenced and brought only after competent legal scrutiny. Abusive, meritless or procedurally incompetent applications may justify escalating measures against the responsible solicitors, including training requirements, undertakings, reporting obligations and referral to the Solicitors Regulation Authority. A document of doubtful provenance does not of itself reverse the burden of proof. An immigration notification which is not an appealable immigration decision cannot be challenged as if an appeal right already existed.

The Divisional Court considered four linked applications concerning abusive or incompetent judicial review claims in immigration cases. The applications had involved substantial delay, an unjustified request for urgent consideration, an impermissible attempt to challenge an immigration notification, grounds which merely repeated matters rejected by the tribunals, and an application made without proper authorisation. The court also considered the conduct and remedial undertakings of the solicitors involved. The central issues were the court’s response to abusive applications, the importance of promptness and proper evidence, and the procedural competence of the challenges.

1. Approach to abusive applications. The court reaffirmed that meritless applications waste public resources and abuse the service provided by the Administrative Court. Solicitors must make applications only after proper consideration of the evidence, assembly of appropriate proof and qualified legal scrutiny. The court may require undertakings, training, reports to the court and, where failings recur or are particularly serious, refer solicitors to the Solicitors Regulation Authority.
2. Promptness and evidence. Judicial review applications must be made as soon as possible and ordinarily no later than three months after the relevant decision. Although time may be extended in appropriate circumstances, an extension after approximately three years was wholly unjustified. Producing an extremely scruffy handwritten bank letter did not reverse the burden of proof.
3. Immigration procedure. A notification stating that a person was an illegal entrant and liable to detention and removal, while permitting reporting restrictions, was not an appealable immigration decision. The right of appeal arose when an immigration decision was made under Nationality, Immigration and Asylum Act 2002, section 82(2)(g). The challenge to IS 151A was therefore incompetent.
4. Tribunal decisions and authorisation. Under CPR 54.7A, a challenge involving decisions of the First-tier Tribunal and Upper Tribunal required an arguable case with a reasonable prospect of success, together with an important point of principle or practice or another compelling reason. Grounds merely repeating arguments rejected by the First-tier Tribunal did not satisfy that threshold. An application commenced by a foreign-registered lawyer who was not authorised to commence judicial review proceedings was also procedurally defective.
5. The court accepted the undertakings and apologies given by the firms, but required written reports within six weeks. It warned that further referrals would be likely, and directed that future responses to applications to appear before a Hamid court should normally be filed at least seven days before the hearing.