Saqib Zia & Anor, R (on the application of) v The Secretary of State for the Home Department

A refusal to reinstate a judicial-review claim automatically struck out under Tribunal Procedure (Upper Tribunal) Rules 2008, rule 8, is in principle appealable with permission. It is not merely a case-management decision because it preserves an order that finally ends the claim. The appeal jurisdiction will nevertheless be exercised sparingly.

Rule 8 supplies the exclusive mechanism for challenging such a strike-out order; rule 43 does not apply. An application for reinstatement is distinct from a review of the original order. The Tribunal must apply the overriding objective and the Denton three-stage approach, assessing the seriousness of the default, its explanation, and all the circumstances. The gravity and finality of strike-out, prejudice, delay, obstruction and the merits where plainly strong or weak may be relevant.

Two judicial-review proceedings were conjoined to provide procedural guidance. In Zia, the applicant failed to comply with an unless direction requiring amended grounds and the claim was automatically struck out. A later application to amend the grounds and reinstate the claim was refused.

In Hossan, the claim was automatically struck out for non-service. Reinstatement was refused because there was no evidence of service. At the hearing, new documents were produced which strongly indicated that the claim had been served and that the relevant fees had been paid.

The central questions were whether refusal to reinstate was appealable to the Court of Appeal and how the Upper Tribunal should approach reinstatement under rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

1. The application for permission to appeal was refused in Zia and granted in Hossan. A refusal to reinstate proceedings struck out under rule 8 is, in principle, appealable under section 13 of the Tribunals, Courts and Enforcement Act 2007. Its practical effect is to affirm the termination of the claim. It should not be treated as a mere case-management decision, although permission to appeal and successful appeals will ordinarily be rare.

2. Rule 8 is the sole procedure for seeking relief from an automatic strike-out. A reinstatement application seeks relief from the sanction. It does not review the correctness or proportionality of the original unless order, and it does not fall within the limited review powers in section 10(4) of the 2007 Act. Rule 43 therefore has no application.

3. The Tribunal adopted the three-stage approach in Denton v TH White Ltd, [2014] 1 WLR 3926. It must assess the seriousness and significance of the breach, consider why it occurred, and evaluate all the circumstances in accordance with the overriding objective. Relevant considerations include the draconian and final nature of strike-out, the effect on the proceedings, prejudice, repeated defaults, possible alternative sanctions, and exceptionally clear merits.

4. In Zia, the default was substantial and highly significant, no adequate explanation or mitigation was provided, and the claim disclosed no redeeming factor. Reinstatement was refused.

5. In Hossan, authentic new evidence materially undermined the central basis on which reinstatement had been refused. The earlier observations concerning time and merit were obiter and insufficiently informed. Applying the overriding objective, permission to appeal was granted, with the prospect that the matter might be remitted for determination of permission for judicial review and the discrete time issue.

• Upper Tribunal (Immigration and Asylum Chamber): In Zia, the judicial-review claim was automatically struck out after non-compliance with an unless direction; reinstatement was refused on 29 June 2016. The Tribunal refused permission to appeal that refusal.
• Upper Tribunal (Immigration and Asylum Chamber): In Hossan, the judicial-review claim was automatically struck out for non-service and reinstatement was refused on 4 May 2016. This decision granted permission to appeal to the Court of Appeal.