Mazaheri v SSHD

Where an immigration decision has been superseded by a lawful fresh decision, challenges directed solely to the earlier decision may no longer support a public law remedy. Any surviving claim for loss caused by earlier unlawful conduct may be pursued as a private law claim for damages. A court may refuse a late amendment raising a technical point where the point lacks merit, is academic, or would achieve no practical benefit. Costs may be awarded to a claimant where proceedings were properly brought and the relief sought was effectively conceded by subsequent administrative action.

The claimant sought judicial review concerning decisions refusing to accept further submissions as a fresh claim, his detention, and removal directions concerning removal to Iran. At an urgent hearing on 14 October 2015, the court dismissed grounds 1, 4 and 5 and adjourned grounds 2 and 3 for written submissions. A decision of 13 October 2015 had reconsidered the claimant’s evidence and was held lawful. The remaining issues concerned whether detention and removal directions were unlawful consequences of earlier defective decisions, whether a different removal-directions form should have been used, the appropriate forum for any damages claim, permission to appeal, and costs.

1. Grounds 2 and 3. The claims concerning detention and removal directions arose from earlier decisions which were no longer operative because they had been superseded by the lawful decision of 13 October 2015. The claimant was no longer seeking a public law remedy in respect of those matters.
2. The court was not prepared, without detailed submissions, to assume that detention following an unlawful refusal to accept submissions as a fresh claim automatically gave rise to a public law remedy or a claim in damages. Any claim for damages arising from the detention should proceed as a private law claim, transferred to the Central London County Court and continued as if begun by a Claim Form under Part 7.
3. The proposed new argument that the wrong removal-directions form had been used was not permitted. The claimant’s submissions did not constitute a fresh claim, the point was academic because new directions could be issued in Part B form, and pursuing the point in urgent proceedings by written submissions after the hearing would be inappropriate and disproportionate. It was also unclear what practical benefit success would provide.
4. The court refused permission to appeal against its decision of 14 October 2015. Permission would have to be sought from the Court of Appeal.
5. The claimant was awarded the costs of the proceedings to and including the 14 October hearing, on the standard basis. The proceedings had been properly brought because the earlier decisions had failed to consider important evidence, and the relief which would have followed had effectively been conceded when a fresh decision was made on 13 October.

This was a first-instance judicial review decision. The court had previously dismissed grounds 1, 4 and 5 and reserved grounds 2 and 3 for written submissions. Permission to appeal was refused, with permission thereafter available from the Court of Appeal if sought.