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

An application for judicial review brought substantially out of time should not be extended where the delay is inadequately explained, the claimant contributed to the prejudice, and the claim lacks merit. In judicial review proceedings, a defendant’s late service of detailed grounds does not automatically justify debarring the defence. The court should consider the circumstances, including prejudice and the public interest in determining the claim on its merits.

Under paragraphs 34A and 34C of the Immigration Rules, an application using a specified form is invalid where mandatory sections are not completed as required. The policy discretion to accept an otherwise invalid application is confined to exceptional circumstances. A standard acknowledgement letter does not create a binding obligation to permit substantial omissions to be rectified.

The claimant sought judicial review of the Secretary of State’s decision of 25 January 2012 rejecting as invalid his application for further leave to remain as a Tier 4 (General) Student. Numerous mandatory sections of the specified form had been left incomplete.

The claim was issued on 5 August 2013, substantially outside the three-month period. The claimant also applied to debar the Secretary of State from defending the claim because detailed grounds were served late. The central issues were whether time should be extended, whether the defence should be struck out, and whether the Secretary of State had unlawfully failed to exercise discretion under the applicable guidance.

1. Debarring application refused. The Secretary of State served summary grounds one day late and detailed grounds substantially later than required. However, the summary grounds set out the substantive response, the detailed grounds added little of real substance, they were served well before the hearing, and the claimant identified no real prejudice. The public interest favoured determination on the merits. Time was extended for service of the grounds.
2. Extension of time refused. The claim was significantly out of time. The claimant had made two further applications with legal assistance, knew after the first refusal that his leave had expired, obtained the relevant file, and then delayed a further six months. The prejudice relied upon was largely attributable to his own conduct. Even success would result in reconsideration, not the mandatory grant of leave sought.
3. Application invalid under the Immigration Rules. Paragraph 34A required the specified form and completion of mandatory sections. Paragraph 34C made an application failing those requirements invalid and not to be considered. The claimant had left substantial parts of the form incomplete, including information about addresses, immigration status, public funds, his course and maintenance.
4. The Guidance applied to an invalid application, rather than the Evidential Flexibility policy. It confined discretion to exceptional circumstances involving requirements that were relatively simple to check, important to decision-making and normally capable of compliance. The omissions here were substantial and were not a minor defect. The caseworker had followed the Guidance.
5. The acknowledgement letter did not create a binding policy requiring the Secretary of State to allow incomplete sections to be completed. It advised what action might be needed to rectify the problem and, read with the Guidance, did not promise that the existing application could routinely be made valid. The claim was dismissed both for lack of merit and because it was out of time.