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

A renewed application for permission to apply for judicial review must be brought within the applicable time limit. Where the challenged decision was made on an earlier date, a later confirmation or review will not ordinarily restart time. A claimant relying on a fresh asylum application to establish compliance with a nationality residence requirement must provide material capable of showing that a genuine fresh application was made. Further correspondence or a request to review an earlier decision is insufficient. Without evidence of a fresh application, the court need not determine how the nationality guidance and Immigration Instructions apply to the resulting residence history.

The claimant challenged the refusal of his application for British nationality. The substantive refusal was dated 17 September 2015 and was confirmed following review on 7 December 2015. Permission was refused on paper by Deputy High Court Judge Monaghan QC on 11 August 2016, including on the ground that the claim was out of time. The claimant renewed the application orally.

He relied on an alleged fresh asylum application made on 30 November 2006, contending that the Secretary of State’s nationality guidance should be read in its light. The central issues were whether the claim was brought in time and whether there was evidence that a fresh asylum application had in fact been made.

1. Time limit. The challenged decision was the substantive nationality refusal of 17 September 2015, not merely its confirmation on 7 December 2015. Proceedings issued on or about 8 March 2016 were outside the three-month period. No satisfactory explanation for the delay had been provided. Permission was therefore refused as out of time.
2. Alleged fresh asylum application. The claimant’s case depended on a fresh asylum application allegedly made on 30 November 2006. No copy of the alleged letter was produced, and no other material demonstrated that it constituted a fresh asylum application. Sending further correspondence or requesting review of an earlier decision would not satisfy that requirement. The court therefore did not reach the first stage of the claimant’s substantive argument.
3. Nationality guidance. Had the evidential threshold been met, questions might have arisen concerning the interaction between booklet “AN” and annex B to chapter 18 of the Immigration Instructions where an earlier asylum application had been rejected, no leave had been granted, and a further application was made. Those questions were left unresolved. The application for permission was rejected.
4. Costs. The order awarding the Secretary of State £750 for opposing the written permission application was affirmed. No separate costs order was made for the dismissal application. A pre-existing order requiring payment of £420 for the hearing before Mr Justice Supperstone required no further order.

The application was a renewed permission application after the High Court (Administrative Court) refused permission on paper on 11 August 2016. The renewed application was refused by this court.