Otobo v Secretary of State for the Home Department

A judicial review claim is premature where the claimant seeks a ruling on the lawfulness of an immigration authority’s position before the related outstanding application has been finally determined. The court must know the decision under challenge and the reasons relied upon before assessing legality. A previous tribunal decision on the burden of proof in revoking a residence card does not, without more, impose a separate duty on the Secretary of State to acknowledge an applicant’s status as a qualified person. The Secretary of State must determine the outstanding application and give reasons for any refusal; legality can then be assessed by the court or, where available, on appeal.

Michael Otobo, an Irish citizen, sought judicial review concerning the Secretary of State’s refusal to acknowledge that he had exercised EEA treaty rights as a qualified person between 2007 and 2012. The claim was brought principally to assist his brother George, a Nigerian national whose application for a permanent residence card remained outstanding.

George’s earlier residence card had been revoked. The First-tier Tribunal allowed his appeal, and the Upper Tribunal dismissed the Secretary of State’s appeal. Subsequent judicial review applications were refused as academic or because the original card had expired. The Secretary of State later accepted that one reason given for refusing George’s permanent residence application was mistaken, but maintained concerns about Michael’s status. The central issues were whether Michael’s claim was an abuse of process and whether it was premature.

1. The claim was dismissed as premature. The Secretary of State’s letter maintaining her position did not constitute a final decision on George’s outstanding application for a permanent residence card. Until that application was determined, the court could not know the reasons for any refusal or whether the Secretary of State would rely on new material.
2. The claim was not an abuse of process. The earlier judicial review proceedings had become academic because George’s five-year residence card had expired. The position had since changed because the Secretary of State recognised that the application had been refused partly on the false basis that George had not supplied his passport, and the application therefore remained to be reconsidered.
3. The earlier tribunal decisions did not establish that Michael was conclusively a qualified person. The Upper Tribunal had decided only that the Secretary of State had not discharged the burden of proving that he was not qualified. The five-year residence card was evidence that Michael had exercised treaty rights during the relevant period, but it was not determinative.
4. There was no distinct legal duty requiring the Secretary of State to acknowledge Michael’s status independently of deciding George’s permanent residence application. Once George clarified that he wished the application to be determined on the existing evidence, the Secretary of State would be obliged to determine it and give reasons for any refusal. The lawfulness of that decision could then be considered by the court or, if applicable, by a tribunal on appeal.