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

Where the Secretary of State agrees to reconsider a decision challenged by judicial review, the existing proceedings should normally be brought to an end. A stay is justified only in exceptional circumstances. The parties’ agreement to a stay does not determine what the interests of justice require.

If proceedings exceptionally remain on foot, the claimant must apply for permission to amend the grounds. The court must assess the arguability of the new grounds through a proper procedure, supported by the required fee. Permission may also be required for further evidence and amendment of the claim form. Failure to follow those procedures may justify refusal of permission to amend and dismissal of the claim.

The claimant challenged decisions concerning his proposed removal to Italy under the Dublin arrangements and certifications of his asylum and human rights claims as clearly unfounded. The proceedings were repeatedly stayed or adjourned while the Secretary of State reconsidered the human rights claim and the claimant submitted further representations, medical evidence and proposed amended grounds.

The claimant ultimately sought permission to rely on amended grounds concerning the July 2015 decision and the alleged risk of treatment contrary to Article 3 of the European Convention on Human Rights. The central issue was whether permission to amend should be granted in circumstances where the proceedings should previously have been terminated and the required procedural applications had not been made.

1. Outcome. Permission to amend the grounds of claim was refused. Without permission to amend, the claim was bound to fail and was dismissed.

2. The court applied the principles in Rathakrishnan v Secretary of State for the Home Department [2011] EWHC 1406 (Admin). Where the Secretary of State agrees to reconsider a decision, proceedings challenging the original decision should normally end rather than remain stayed. A stay is appropriate only in exceptional circumstances, such as where the fresh decision is already before the court or another exceptional feature justifies keeping the proceedings on foot.

3. The parties’ consent cannot by itself justify a stay. The court must consider the interests of justice, including the interests of other court users. The parties should have recognised in October 2014 that the original removal directions had been overtaken by events and that the claim should have been brought to an end.

4. If proceedings remain on foot exceptionally, an order must require an application for permission to amend. The court must determine the arguability of the proposed grounds through an identified procedure, with the appropriate fee. The claimant also needed permission under CPR 54.16 to rely on further evidence and, in the circumstances, permission to amend the claim form. No such applications had been issued.

5. The procedural failures meant that there had been no orderly determination of whether the proposed amendments merely altered existing grounds or amounted to a fresh claim. The proposed reliance on an expert report prepared for separate proceedings also raised a distinct concern: expert evidence required permission and the safeguards associated with an expert’s duties could not be assumed where the expert had not been instructed in the present claim.