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

A consent order which permits withdrawal of judicial review proceedings, while recording the parties’ agreements in recitals, does not ordinarily leave proceedings alive for enforcement. Unless its operative terms impose an obligation or contain an appropriate liberty-to-apply provision, a recital that a public authority will make a decision within a stated period is neither an order, an undertaking to the tribunal nor an inter-partes contractual promise.

Non-compliance with such a recital does not found contempt. The usual remedy for an unjustified failure to make the promised decision is a fresh judicial review claim challenging the omission or failure to decide, with expedition and interim mandatory relief available where justified.

The applicant had brought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh protection or human-rights claim. The parties settled that claim through an approved consent order. Its recitals recorded mutual commitments, including that the Secretary of State would make a fresh decision within three months after receiving further material. Its operative provisions permitted withdrawal and dealt with costs.

The applicant supplied further material, some of it late. The Secretary of State did not decide within the agreed period. The applicant sought enforcement, reinstatement and variation of the consent order. Before the application was determined, the Secretary of State made a fresh appealable decision, which was the subject of a pending First-tier Tribunal appeal.

The central issue was whether the Upper Tribunal could revive or enforce the withdrawn judicial review claim because of the Secretary of State’s delay.

1. The application for enforcement, reinstatement and variation was refused. The proceedings had become practically academic once a fresh decision had been made. Nonetheless, it was in the public interest to give guidance under the discretion recognised in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450.

2. The approved consent order finally disposed of the original judicial review. Under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008, withdrawal required and received the Tribunal’s approval. Neither rule 17 nor rule 39(1) preserved an enduring jurisdiction to revive proceedings after withdrawal. The order contained no liberty-to-apply provision.

3. The clauses beginning “Upon” were recitals, not operative orders. They recorded the factual basis of the settlement and the parties’ bona fide intentions. They did not order either party to act, and neither party gave an undertaking to the Tribunal. The operative provisions concerned withdrawal and costs only. Accordingly, delay by either party in performing a commitment in the recitals was not a breach of the consent order and could not found civil contempt.

4. The Tribunal accepted that it has a civil-contempt jurisdiction as a superior court of record. That jurisdiction may in principle extend to a minister or official, but must be exercised cautiously and only in respect of a sufficiently clear and enforceable order or undertaking. A consent order containing an unqualified operative requirement to act within a stated time could, in principle, support contempt proceedings.

5. The proper response to a failure to make a decision promised in recitals is normally to seek agreement on a revised timetable or to bring a fresh judicial review alleging an omission or failure to decide under the Immigration Acts. The Upper Tribunal has jurisdiction over such a claim. It may consider expedition, interim mandatory relief and costs, having regard to the delay, each party’s contribution to it, personal circumstances and affected children.

The existing costs provisions remained operative. Further costs were to lie where they fell.

• Upper Tribunal (Immigration and Asylum Chamber): The applicant’s original judicial review was withdrawn with the Tribunal’s approval under an agreed consent order sealed on 14 April 2016. The applicant later sought enforcement, reinstatement and variation after delay in fresh decision-making. This judgment refused that application.