Nighat Sultana, R (on the application of) v The Secretary of State for the Home Department

A mandatory order is an exceptional public-law remedy. It is available only where the decision-maker is under a legal duty to take a specified course and that course is the sole legally permissible result. It will ordinarily be inappropriate where the decision requires a current assessment of material facts or evaluative judgments, including under the Immigration Rules.

Where an unlawful decision requires reconsideration, the normal remedy is a quashing order and a fresh decision. A public authority may lawfully seek a further interview where it has discretion to do so and acts in accordance with public-law principles.

The applicant, a Pakistani national, and her children applied for entry clearance under the Tier 1 (Entrepreneur) route. The Entry Clearance Officer awarded full points on most requirements but refused the application on maintenance grounds, without considering all requirements in paragraph 245DB of the Immigration Rules.

Following administrative review, the respondent accepted that the applications should be reconsidered, subject initially to a further interview. The applicant sought judicial review and a mandatory order requiring the grant of entry clearance. The issues were whether such an order should be made, whether a further interview could be required, and costs.

1. The judicial-review application was dismissed. A mandatory order was inappropriate. That remedy is exceptional and is available only where the respondent has no choice or discretion and the order sought is the sole legally permissible result.

2. Although the respondent had conceded an error requiring reconsideration, that did not establish an entitlement to entry clearance. The usual consequence of a legally unsustainable decision is a fresh decision, informed by the court’s judgment, rather than an order conferring the substantive benefit claimed.

3. The grant of entry clearance required a current assessment of all material facts and considerations. The evidence relied upon was no longer current, and there was no evidence that it remained unchanged. The respondent also had to make evaluative judgments under paragraph 245DB of the Immigration Rules, including matters in subparagraphs (f) and (i) concerning the genuineness of the applicant’s plans and intentions. The Entry Clearance Officer had not assessed those requirements and was required to be satisfied of them.

4. The respondent could lawfully seek a further interview if it chose to do so. There was no legal rule making an interview mandatory, but neither was the wish to interview unlawful or irrational in the Wednesbury sense.

5. There was no order as to costs. The respondent’s conceded error, the applicant’s former lack of representation, and the respondent’s late withdrawal of its insistence on a further interview justified departure from the ordinary rule. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application dismissed. The tribunal declined to compel the grant of entry clearance and made no order as to costs.
• Administrative review: The Entry Clearance Manager affirmed the original refusal before the judicial-review proceedings.