MD Ayaz Karim, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber)

On an adjournment application in judicial review proceedings, the court must determine what the interests of justice require in the circumstances of the case. Where a claimant has secured specialist leading counsel who wishes to address a jurisdictional issue but cannot attend the listed hearing, proceeding with the claimant unrepresented may be unjust. Oral hearings and specialist representation can make a material difference to the fair determination of disputed legal issues. The court may also take account of the respondent’s own late application, including any request for an extension of time linked to obtaining counsel’s advice. A short adjournment may properly be granted even where the issue is said to be straightforward and further costs or judicial resources will be incurred.

The claimant brought a permission-stage judicial review challenge to the Upper Tribunal’s refusal of permission to appeal on 20 September 2022. The claim was commenced on 21 October 2022. Permission was refused on the papers by Sweeting J on 23 August 2023, and the claimant renewed the application.

The hearing was listed for 28 February 2024. The SSHD had also applied to set aside directions and for an extension of time, relying on a jurisdictional issue concerning the Tribunals, Courts and Enforcement Act 2007. Shortly before the hearing, the claimant’s solicitors sought an adjournment because newly instructed leading counsel was unavailable and required further time to prepare. The central issue was whether the hearing should proceed with the claimant unrepresented.

1. The adjournment application was granted. The court held that the interests of justice required the hearing to be adjourned rather than proceeding with the claimant unrepresented.

2. The claimant and his solicitors had secured specialist leading counsel who wished to make representations on the jurisdictional issue and any other matters arising. The fact that the jurisdictional issue might prove straightforward did not justify proceeding without that representation. There is a material difference between appearing in person and being represented by specialist counsel, and oral hearings are an important feature of the legal system.

3. The court was entitled to consider the surrounding circumstances. These included the claimant’s prompt adjournment application, the absence of evidence that his solicitors had been dilatory, and the SSHD’s own application for an extension of time outside the directions timetable because time had been needed to obtain counsel’s opinion.

4. The court made no criticism of the SSHD for resisting the adjournment or inviting the court to proceed. Nevertheless, that invitation was rejected on the facts of the case.

5. Three applications were adjourned: the renewed permission application; the SSHD’s application for an extension of time and to set aside the directions; and the claimant’s application for permission to rely on amended grounds. The adjourned hearing was to be listed for 60 minutes after 28 days, with skeleton arguments to be filed 14 days before the hearing by the claimant and seven days before by the SSHD. Costs were reserved.

The judgment describes prior procedural steps in the Administrative Court:

• Administrative Court: Sweeting J refused permission for judicial review on the papers on 23 August 2023.
• Administrative Court: the claimant filed a purported notice of renewal on 23 August 2023. Directions for an oral hearing were subsequently made, and the present court adjourned the listed applications.