Otobo, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

A judicial review claim is ordinarily inappropriate where the claimant has received a formal appealable decision and failed to use the statutory appeal route. Judicial review cannot generally be recast as a challenge to continuing unlawfulness when the alleged unlawfulness arises from repeated appealable decisions. Delay and the existence of an adequate alternative remedy may defeat permission even where the underlying legal issue has not been authoritatively resolved. On an adjournment application by a litigant in person relying on ill-health, the court must scrutinise the medical evidence, consider reasonable arrangements short of adjournment, and avoid unfairness. Repeated adjournments, absence of a likely timescale, and failure to address participation by remote hearing may justify refusal.

The claimant sought renewal of an application for permission to bring judicial review proceedings concerning the refusal of a permanent residence card. Permission had previously been refused on the papers by Mrs Justice Steyn on the grounds of an adequate alternative remedy and delay. The claimant had received formal decisions in 2015 and 2018, each carrying a right of appeal, but had pursued neither appeal.

Before the renewed hearing, the claimant sought a further adjournment on medical and representation grounds. The court therefore considered both whether the hearing should proceed remotely in his absence and whether permission for judicial review should be granted despite the statutory appeal route and the delay.

1. Adjournment. The application for a fourth adjournment was refused. The court had carefully considered the medical evidence, but it did not provide a clear likely timescale for the claimant’s ability to participate, explain why he could not attend by telephone, or address alternatives such as a different hearing time, breaks, or written submissions. The court was satisfied that appropriate arrangements could have enabled participation and that a further adjournment would be disproportionate and contrary to the interests of justice.
2. Remote hearing and open justice. The telephone or Skype hearing was an open, public hearing. Members of the public and press could observe it by dialling in. The remote format had not prejudiced the claimant and could, in practical terms, have assisted him by avoiding attendance at court.
3. Permission for judicial review. The renewed application was refused. The statutory scheme provided formal decision-making and a right of appeal against the decisions refusing a permanent residence card. That appeal was an appropriate remedy for the claimant’s substantive legal point. Judicial review should not be used instead, particularly after the claimant had failed to appeal and had delayed for more than 18 months in challenging the 26 March 2018 decision.
4. The court held that allowing a later judicial review raising a point which could have been advanced on appeal would subvert the statutory scheme. The claimant could not avoid the consequences of delay by characterising the alleged unlawfulness as continuing where formal decisions had repeatedly been made and communicated. The court expressly declined to determine the underlying residence-card issue, leaving it for any properly brought future application or challenge.
5. The earlier costs order stood. The court declined to certify either application as totally without merit, although both applications were robustly rejected.

• High Court (Administrative Court): Permission for judicial review was refused on the papers by Mrs Justice Steyn on 6 December 2019 on the grounds of alternative remedy and delay. The renewed application was refused by Mr Justice Fordham.