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

When deciding whether to extend time for judicial review, the court must assess the whole circumstances. The arguable merits are important but are only one factor. The claimant’s delay, the purpose of the time limit—administrative certainty—and the prejudice caused to good administration by requiring litigation after a long delay may justify refusal, even where the respondent suffers no case-specific evidential prejudice. An applicant’s immigration background may be relevant, particularly where it makes compliance with the time limit important, but it is not an automatic bar. An appellate court should not interfere with a discretionary decision that falls within the proper margins.

The applicant, a Bangladeshi national studying in the United Kingdom, challenged the refusal of further leave to remain. An earlier application had been refused under paragraph 245ZX(h) of the Immigration Rules, and his appeal had been dismissed. A later Tier 4 application was refused after a bank certificate was found to be forged. The judicial review claim was lodged ten days outside the three-month limit. Upper Tribunal Judge Freeman considered the proposed challenge arguable but found no reasonable excuse for the delay and refused permission. The renewed application concerned the weight given to the applicant’s immigration history, the alleged absence of prejudice to the Secretary of State, and the long-term consequences of refusal.

The renewed application for permission to appeal was refused.

1. Extension of time. The merits of the proposed judicial review were only one feature of the case. The court also had to consider the delay, the purpose of the time limit, and the consequences for good administration. The outer time limit was generous and existed to provide administrative certainty.
2. Prejudice. The absence of specific prejudice to the Secretary of State did not require the claim to proceed. Requiring the Secretary of State to engage in litigation concerning a dispute that had arisen two years earlier was itself prejudicial to good administration.
3. Applicant’s circumstances. The consequences of refusal were disadvantageous, but the applicant had brought them on himself through inactivity immediately after the refusal of leave. His immigration background was a material consideration. The Upper Tribunal Judge had not treated it as an automatic bar; he had observed that, given that background, compliance with the relevant time limit was imperative.
4. Appellate restraint. On a full reading of the decision, no error had been demonstrated. The decision was well within the proper margins of the judge’s discretion, so the Court of Appeal had no basis to interfere. The application was therefore refused.

• Court of Appeal (Civil Division) — renewed oral application for permission to appeal refused: [2015] EWCA Civ 579.
• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Freeman refused permission to apply for judicial review on 1 May 2014, finding no reasonable excuse for the delay despite considering the proposed challenge arguable.
• First-tier Tribunal — appeal against the earlier refusal of leave to remain dismissed on 11 September 2012.