Kaur & Anor, R (On the Application Of) v The Secretary of State for the Home Department

Relief from a procedural sanction requires assessment of the seriousness and significance of the breach, the reason for default, and all the circumstances so that the court can deal justly with the application. The same approach applies where a claim or appeal is dismissed for procedural default. Delay in obtaining a transcript may be a good reason, but the party must keep the Civil Appeals Office informed and seek extensions promptly. Merits are also important: an applicant normally needs real prospects of success or another good reason for relief. Where mandatory evidence was missing, a formal determination could only have resulted in refusal, so non-determination caused no prejudice. A policy requiring a fresh application for incomplete visa documents was not arguably unlawful.

The applicants sought entry clearance as the partner and child of a person settled in the United Kingdom. Their applications were refused, and further applications were made online. At the visa appointment, the required compliant English-language evidence was not provided and biometric data were not collected. The Upper Tribunal dismissed their judicial review challenge, finding inadequate evidence that the applications had been wrongly rejected or that a further appointment had been promised.

The applicants appealed, but failed to file the required transcript and skeleton argument. Master Meacher dismissed the appeal for procedural default. The Court of Appeal reviewed that decision under CPR rule 52.24(5), considering whether the dismissal should stand and whether any proposed ground of appeal was arguable.

The Court of Appeal treated the review application as an application for relief from sanction. Master Meacher had been justified in dismissing the appeal because of the applicants’ continuing procedural defaults, although the Court had to reconsider whether dismissal should be maintained in light of the later material.

1. The guidance in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926 applies to procedural compliance generally, including dismissals for default and applications made out of time. The court must assess the seriousness and significance of the breach, why it occurred, and all the circumstances so as to deal justly with the application.
2. Delay in obtaining a transcript may constitute a good reason. However, the party responsible for filing it must keep the Civil Appeals Office informed, seek extensions as soon as necessary and preferably before expiry, and provide information about the transcription request, progress and likely completion. Failure to do so may justify dismissal and will attract little sympathy on review. The guidance in Hallam Estates v Baker [2014] EWCA Civ 661 was applied.
3. The breach was serious. Although most of the delay resulted from the transcriber, the applicants’ failure to keep the court properly informed was important. Their proposed grounds also had no real prospects of success.
4. The first ground was not arguable because the evidence supported the finding that the English-language documentation was incomplete and did not establish any promise of a further appointment without a fresh application. The policy requiring recommencement of an incomplete application was not arguably unlawful.
5. The second ground was empty. Even if the Secretary of State had been obliged formally to determine the applications, the mandatory language requirement was unmet. Mrs Kaur’s application could only have been refused, and the second applicant’s application was dependent upon it. Any appeal would therefore have been unarguable and the applicants suffered no possible prejudice.

The review application was refused and the Master’s dismissal of the appeal was maintained.

1. Court of Appeal (Civil Division): review application refused; dismissal of the appeal maintained.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Coker dismissed the judicial review on 1 November 2016 and 30 November 2016 and refused permission to appeal.
3. Master Meacher: dismissed the appeal with costs on 28 April 2017 for failure to file required documents.