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

Relief from sanctions is governed by the three-stage approach in Denton v TH White Ltd: assess the seriousness and significance of the breach, identify why it occurred, and evaluate all the circumstances, giving particular weight to efficient litigation and compliance with orders. Lack of funds and the difficulties of acting without legal representation will not ordinarily constitute a good reason for delay.

Where a public authority makes a fresh, free-standing decision after an existing judicial review has been stayed, a claimant will generally need fresh proceedings, subject to exceptional circumstances. A decision-maker considering Article 8 must consciously determine whether the Rules address all the issues raised. Adult family life is fact-sensitive, and paragraph 276ADE requires a rounded assessment of ties, based on the evidence available.

The claimant, a Pakistani national, challenged refusals of leave to remain based on Article 8. Permission was initially granted on the question whether his Article 8 rights, including the position of his British wife, had been properly considered. The proceedings were then stayed by consent while the Secretary of State reconsidered the application and issued a fresh decision.

The claimant failed to file amended grounds within the period required by the Consent Order. He later sought informally to rely on amended grounds challenging the fresh decision. The Secretary of State applied to dismiss the claim, relying on the agreed sanction, the principles governing fresh decisions in judicial review, and the absence of an arguable substantive challenge.

1. Relief from sanctions. The failure to file amended grounds within 21 days was serious and significant. The Consent Order was intended to provide finality and certainty, either ending the proceedings or requiring their prompt progression. The claimant’s only explanation was lack of funds. Applying Hysaj, that was not a good reason for delay; the same applied to the claimant’s effective position as an unrepresented litigant. The delay exceeded six months, the application for relief was not prompt, and there was a history of procedural default. Relief was refused under CPR 3.9 (paras [50]–[71]).
2. Construction of the Consent Order. The reference to the existing application for judicial review did not confer permission to challenge a new, free-standing decision. The amended grounds had to relate to the existing challenge. A fresh challenge required separate proceedings, or an application for permission to amend, and could not bypass the permission stage and court fees (paras [74]–[78]).
3. Fresh decisions. Applying Bhatti and the principles derived from Rathakrishnan, judicial review proceedings should generally not remain on foot merely to enable a later decision to be challenged without fresh proceedings. The recognised exception concerning a subsequent decision addressing the same issue on materially related evidence did not apply. The amended grounds were therefore impermissible in the existing claim (paras [79]–[84]).
4. Article 8. The Secretary of State expressly considered Article 8 outside the Immigration Rules. A decision-maker must consciously determine whether consideration under the Rules has addressed all Article 8 issues. Where issues remain outside the Rules, including a claimed relationship with adult children, those matters must be considered. On the limited evidence, the conclusion that the adult children were independent and that relocation to Pakistan was proportionate was open to the Secretary of State (paras [101]–[117]).
5. Paragraph 276ADE. The assessment of whether an applicant has no ties to the country of return must be rounded and fact-sensitive. The Secretary of State had only the evidence supplied by the claimant. Given his 36 years in Pakistan and the absence of evidence showing lost ties, the conclusion reached was open to her (paras [118]–[123]).
6. The judicial review claim was dismissed. Even if the amended grounds had been allowed to proceed, all three grounds would have failed as unarguable.