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

A judicial review claim should be dismissed where the relief sought and the alleged issue of wider importance have become entirely academic. A procedural policy requiring international-protection claims to be made in person is not inherently unlawful or unfair. In the absence of specific and compelling circumstances making its application unlawful in an individual case, a general public-law challenge to that procedure is unlikely to succeed.

The applicant, a Sri Lankan national, had previously settled a judicial review claim by a consent order requiring the Secretary of State to withdraw and reconsider a decision after receiving further representations. The applicant sent representations in writing. The Secretary of State treated them as invalid because her published policy required relevant claims to be made in person.

Permission for judicial review was granted on the basis that the delay and the implications of the consent order were arguable. Before the substantive hearing, the Secretary of State granted the applicant refugee status and agreed to clarify the policy. The Tribunal therefore considered whether any live issue remained.

1. The judicial review claim was dismissed. The grant of refugee status removed any live complaint about delay or any need for an order requiring a decision within a specified period. The Secretary of State’s proposed clarification of her policy, accepted as adequate by the applicant, also removed the asserted issue of wider importance: [5], [9]-[11].

2. The dispute about whether the consent order permitted written rather than personal representations was principally one of construing the parties’ agreement. Parties may agree whatever terms they choose. The Tribunal saw no useful purpose in deciding that academic contractual issue, particularly as this judgment could provide practical guidance: [7]-[8].

3. By way of observations only, a policy requiring asylum and Article 3 protection claims to be made in person was a procedural matter for the Secretary of State and was not inherently unlawful or unfair. A general challenge would be unlikely to succeed unless compelling case-specific circumstances made application of the procedure unfair or unreasonable: [12(ii)].

4. The policy allowed an application for an exception. A person alleging that it was unlawful to require personal attendance should first seek exemption. Consent orders providing for further representations should state clearly whether they may be made in writing or must be made in person. Failure to follow that guidance, or to advance specific and compelling reasons, could have costs consequences: [12(iv)-[12(vi)].

An earlier judicial review challenge to a decision of 15 April 2012 was settled by a consent order signed on 26 November 2012 and sealed by the Administrative Court on 11 December 2012. Permission for this judicial review claim was granted by the Upper Tribunal on 7 April 2014. No appellate decision is recorded.