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

Judicial review claimants and their lawyers must disclose material facts before issuing proceedings and must present them clearly. A bundle of undigested documents does not discharge that duty. However, an omission may be treated as an innocent oversight where there was no intention to mislead and the court would not realistically be misled.

Amendments should be refused where the proposed ground was available when the claim was issued, adds no genuinely new decision, or would prolong the permission stage without good reason. The overriding objective applies to public law proceedings. A challenge to the lawfulness of the scheme of the Immigration Rules may properly proceed in the Administrative Court, although the precise scope of the jurisdictional exception remains arguable.

The claimant, an Afghan refugee who arrived in the United Kingdom as an unaccompanied child, sought family reunion with his mother and two younger brothers. An application was sent shortly before his eighteenth birthday, but it did not comply with the procedural requirements of the Immigration Rules. The Secretary of State treated it as invalid and stated that the pre-action protocol was concluded.

The claimant brought judicial review proceedings challenging the alleged absence of provision for family reunion for refugee children. Before permission was considered, the court had to determine whether the claimant's lawyers had breached the duty of candour, whether further amendments and a reply should be permitted, whether the claim belonged in the Upper Tribunal, and how related claims should be managed.

1. Duty of candour. Claimants and their lawyers must disclose all material facts, including adverse facts, before issuing a judicial review claim. The duty crystallises by the time the claim form is issued. Lawyers must draw the judge's attention to the material issues and cannot rely on a large bundle to reveal them indirectly. The claimant's age was material because it affected standing and the possible relief, and should have been stated prominently in the Statement of Facts and Grounds.
2. Despite that serious omission, the court held by a fine margin that there was no breach. There was no evidence of an intention to mislead or obtain an unfair advantage, the claimant's age appeared elsewhere in the papers, and the permission judge would not realistically be misled. It would also be disproportionate to deny access to the court because of a single error by otherwise competent lawyers. The claimant himself was not personally blameworthy.
3. Amendments and reply. The application to re-amend was refused. The Secretary of State's position that the application was invalid had been clear from the correspondence before the claim was issued. Any challenge to failure to consider discretion outside the Rules should have appeared in the original grounds. The amended Summary Grounds introduced no fresh decision and could not provide a hook for a new claim. The application to amend the Reply was likewise refused because the proposed matters were substantive grounds of challenge, not a proper reply, and successive applications conflicted with the overriding objective and the purpose of the permission stage.
4. Venue and case management. The parties' agreed view could not determine jurisdiction. Nevertheless, the court accepted that the challenge was arguably directed to the lawfulness of the scheme of the Rules, an issue falling within the Administrative Court's constitutional specialism. The claim therefore remained in that court. The two related claims were stayed, and this claim was to proceed alone to a paper decision on permission.