JS v Secretary of State for the Home Department

At the permission stage, section 31(3) of the Senior Courts Act 1981 requires the court to be satisfied that the claimant has a sufficient interest in the matter challenged. The court should focus on the relief sought and ask whether, in light of the claimant’s position when permission is considered, the relief is capable of conferring a benefit on that claimant. The threshold is applied liberally in appropriate public-interest litigation, but it is not a dead letter. A claimant challenging a policy which can no longer apply to him lacks sufficient interest where success would provide no direct or practical benefit. The Convention “victim” test under section 7(1) of the Human Rights Act 1998 and Article 34 is at least as stringent.

The claimant, an Afghan national, entered the United Kingdom as an unaccompanied minor and was later granted refugee status. He sought to challenge the policy reflected in paragraphs 352A to 352F of the Immigration Rules and associated guidance, under which adult refugees had a family-reunion route but child refugees did not have an equivalent route to bring parents or siblings.

The claim alleged breaches of section 55 of the Borders, Citizenship and Immigration Act 2009, Article 14 read with Article 8 of the Convention, and irrationality. Permission had been refused on the papers. At the renewed hearing, the principal issue was whether the claimant, then an adult and without a valid family-reunion application made while he was a child, had standing. The court also considered whether the proceedings should be stayed pending his appeal against refusal of permission to re-amend his grounds.

1. Standing under the Senior Courts Act 1981. Section 31(3) applies at the permission stage and requires the court to be satisfied that the applicant has a sufficient interest in the matter challenged. The provision must not be treated as a dead letter. The court should focus on the relief sought and ask whether, at the time permission is considered, that relief is capable of conferring a benefit on the claimant. A benefit need not be pecuniary. [33]-[35]
2. The liberal approach to standing in public-interest cases did not assist this claimant. He was no longer a child, and the challenged policy could not apply to him in the future. Following the refusal of permission to re-amend, there was no valid application made while he was a child. A successful policy challenge would therefore not directly alter the basis on which his existing application fell to be determined. The possibility that success might contribute indirectly to a future Article 8 application through “historic injustice” was too speculative. [28]-[34]
3. The authorities on historic injustice did not establish standing on these facts. They concerned an established and longstanding injustice with a causal connection to the claimant’s circumstances. Here, there was no proper basis for concluding that an equivalent family-reunion route would have enabled a valid application before the claimant turned 18. [25]-[31]
4. For the Convention ground, the “victim” requirement under section 7(1) of the Human Rights Act 1998 and Article 34 was more stringent. Since the claimant lacked sufficient interest under section 31(3), he was not currently a victim of the alleged Convention breach. [36]
5. The renewed application was not finally refused at that hearing. The proceedings were stayed pending final determination of the claimant’s appeal against the refusal to re-amend. If that appeal succeeded, the renewed permission application was to be relisted for oral hearing; if it failed, permission would be refused. [37]

High Court (Administrative Court): Farbey J refused permission on the papers on 15 December 2020 and had earlier refused permission to re-amend the claim in [2020] EWHC 3053 (Admin). The renewed application was heard by Chamberlain J, who stayed the proceedings pending final determination of the claimant’s appeal against the refusal to re-amend.