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

A judicial review claim will not proceed where the proposed grounds are unarguable. General reliance on different outcomes in other cases does not establish unlawful inconsistency without evidence that the cases are materially comparable. A decision-maker may reject further humanitarian representations where the matters relied on have been considered and do not justify leave to remain. Certification as clearly unfounded is lawful where the decision-maker has applied anxious scrutiny and concludes that there is no realistic prospect of success before an immigration judge. Detention pending removal is lawful where removal is reasonably contemplated and the circumstances, including earlier non-compliance with removal arrangements, provide an adequate basis for detention.

The claimants sought permission to apply for judicial review of the defendant’s decision of 22 July 2016 refusing further representations for leave to remain on humanitarian, including Article 8, grounds, certifying the claim as clearly unfounded, and detaining them from that date.

The claimants had entered the United Kingdom as students. Earlier applications had been refused without challenge. Their further representations relied, among other matters, on a false certificate of sponsorship supplied by an adviser and their subsequent report of that matter to the authorities. They also alleged inconsistency with decisions in other cases and challenged the certification and detention.

The issue was whether any ground disclosed an arguable basis for judicial review.

1. Humanitarian representations and alleged inconsistency. The defendant had expressly considered the claimants’ explanation concerning the false certificate of sponsorship, their report to the authorities, and the submission that others in a similar position had been granted leave. Her conclusion that those matters did not justify leave to remain, together with the observation that no two cases are necessarily the same, disclosed no arguable public law error. In the absence of evidence demonstrating material inconsistency with other decisions, the fairness and administrative-law challenge was unarguable.
2. Certification. There was no arguable basis for challenging the certification that the claim was clearly unfounded. The decision letter referred to anxious scrutiny and addressed whether the case would have a realistic prospect of success before an immigration judge. The conclusion that there was no such prospect was not shown to be legally erroneous.
3. Exceptional circumstances. The decision letter addressed exceptional circumstances, including the matters previously put forward. In light of the consideration already given to those matters, the challenge to the refusal on this ground was also unarguable.
4. Detention. The claimants had previously failed to report for removal. Removal had been intended and there was no identified obstacle beyond the administrative steps required to effect it. In those circumstances, detention from 22 July 2016 with a view to removal was plainly open to the Secretary of State. The detention ground was therefore unarguable.
5. The application for permission to apply for judicial review was refused. The claimants were ordered to pay the defendant’s costs of the acknowledgement of service, summarily assessed at £1,060.

Permission to apply for judicial review was refused on the papers by Jonathan Swift QC, sitting as a Deputy High Court Judge. The present court refused the application after considering whether the proposed grounds were arguable.