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

Section 31(2A) of the Senior Courts Act 1981 requires refusal of judicial review relief where it is highly likely that the outcome would not have been substantially different without the public law error. The court may assess the likely outcome by drawing reasonable inferences from the evidence, while respecting the high threshold and avoiding a merits review.

A request to remain under Appendix EU does not constitute an application in the prescribed form merely because it is included in a section 120 response. Where no entitlement under Appendix EU is established, failure to consider the asserted entitlement does not invalidate removal or human rights decisions if the statutory no-difference test is satisfied.

The claimant, an Indian national who had overstayed his visitor leave, sought judicial review of decisions refusing his human rights claim, certifying it as clearly unfounded, notifying him of removal and authorising his detention.

He argued that the Secretary of State had been required to consider his asserted entitlement under Appendix EU, despite his failure to make an application in the prescribed form. He also relied on the Withdrawal Agreement, departmental policy, authority concerning fresh matters, procedural fairness and the principles governing detention.

The central issues were whether the asserted Appendix EU claim required consideration, whether any failure was material under section 31(2A) of the Senior Courts Act 1981, and whether the individual decisions were unlawful.

1. Application refused. The challenges to the human rights, certification, Appendix EU, removal and detention decisions failed.
2. The claimant had no entitlement under Appendix EU. He was not resident in the United Kingdom by 31 December 2020, had not applied by then for facilitation, had not applied for settled status by 30 June 2021 or sought permission for a late application, and held no relevant family permit or residence card.
3. The section 120 response was not an application in the prescribed form. The Secretary of State had considered the representations, declined to treat them as an application made outside the rules, and directed the claimant to use the proper procedure.
4. Even assuming that the Secretary of State had been required to consider the asserted Appendix EU rights in July 2023, section 31(2A) of the Senior Courts Act 1981 required refusal of relief. On the evidence, it was highly likely that the Secretary of State would have reached the same conclusion. The court could draw that inference from the absence of any explanation or supporting evidence and the consistent assessment that the claim was hopeless. The caution in Plan B Earth remained applicable.
5. The human rights claim had been considered. The assessment of private and family life, including the claimant’s connections with India, employment history and limited lawful residence in the United Kingdom, was open to the Secretary of State. The Appendix EU issue did not amount to an unconsidered human rights claim. The new proportionality argument was also rejected.
6. The Withdrawal Agreement protections in Article 18, including assistance in proving eligibility, were unavailable because no application had been made. The court did not decide whether there was a general duty to consider an unmade application where that issue could not affect the outcome. As removal was lawful, detention pending removal was also lawful.