Qureshi & Anor v Secretary of State for the Home Department

A serious procedural irregularity which deprives a party of a fair opportunity to present an application requires the appellate court to allow the appeal and remit the matter for rehearing. The Court of Appeal should not ordinarily determine permission for judicial review as a court of first instance where the applicant has not received a proper hearing. Doing so may proceed without evidence that could have been adduced below and may deprive the applicant of a further appeal route. The appellate court should leave the merits open where the appeal concerns only the procedural failure.

Mr Qureshi challenged the Secretary of State’s refusal of leave to remain, relying on family and private life under Article 8 and on the application of the Immigration Rules. The Upper Tribunal refused permission to apply for judicial review on 29 September 2015 after hearing the application in his absence. It treated the application as academic and, alternatively, considered the grounds unarguable.

The appellant contended that the Upper Tribunal had failed properly to address his requests for an adjournment, supported by medical evidence, and his wife’s application to join the proceedings. The central issue was whether the Court of Appeal should determine permission itself or remit the application for a fresh oral hearing.

The appeal was allowed and the application for permission to apply for judicial review was remitted to the Upper Tribunal for rehearing.

1. Procedural irregularity. The appellant had been denied the opportunity to have his application heard. His wife’s attempted joinder had not been properly dealt with, and relevant requests for an adjournment and medical evidence had not been considered. The procedural history justified setting aside the Upper Tribunal’s determination.
2. Proper appellate role. The Court of Appeal declined to determine permission as a first-instance court. It might not have all the evidence which could have been deployed below. If it refused permission itself, the appellants could lose a further route of appeal, creating an additional procedural injustice.
3. Merits left open. The appeal was allowed on the procedural ground authorised by the grant of permission. The court made no comment on the merits or otherwise of the proposed judicial review. The matter was remitted to the Upper Tribunal for rehearing of the oral application for permission.

• Court of Appeal (Civil Division) [2018] EWCA Civ 3136: allowed the appeal and remitted the application for permission for judicial review to the Upper Tribunal for rehearing.
• Upper Tribunal (Immigration and Asylum Chamber), order dated 29 September 2015: refused permission after determining the application in the appellant’s absence, treating it as academic and alternatively as lacking merit.