CBW & Ors, R (on the application of ) v Secretary Of State for the Home Department

A judicial review claim must be determined on the pleaded case and the facts relevant to the challenged decision or measure. It is generally inappropriate to select part of an unready claim, supported by incomplete pleadings and documentation, and use it to determine an academic challenge in another case. A policy challenge should not be considered in isolation where the legality of an individual decision may resolve the dispute, or where the decision-maker’s actual reasoning may affect the relevance of the policy. Procedural rigour promotes fairness to the parties and proper adjudication. Where a policy has been replaced and individual decisions withdrawn, the appropriate course is ordinarily to seek case-management directions identifying suitable cases and defining the issues before hearing.

Four claimants sought judicial review concerning a policy governing the assessment of good character in applications for naturalisation as British citizens. Three had been refused naturalisation under version 6 of the policy; the fourth challenged the policy without having applied for citizenship. Version 6 was replaced by version 7, and the three individual refusal decisions were withdrawn for reconsideration.

The claimants applied to withdraw their claims. An attempt was made to substitute two stayed claims, AD and RF, and to determine immediately only their generic challenge to version 6. The proposed substitute claims had not received permission, detailed grounds had not been served, and the pleadings and evidence were incomplete. The issue was whether the substitution and partial hearing should be permitted.

1. Application refused. The court refused the application to lift the stays, grant permission to AD and RF, and hear only part of their challenges to version 6.
2. A judicial review claim concerns the lawfulness of particular decisions or measures and must be considered by reference to the pleadings and facts of the relevant case. It was procedurally inappropriate to determine part of claims which were not ready for hearing, on partial documentation and without a proper understanding of the facts.
3. It was also unprincipled to use the proposed claims as a vehicle for deciding academic issues in the original claims. The individual facts might establish that a refusal decision was unlawful without any need to examine the policy. Conversely, the decision-maker’s actual consideration of matters allegedly omitted from the policy might determine whether the decision was lawful.
4. The court emphasised the importance of procedural rigour. The rules exist to ensure fairness to the parties and proper adjudication. Once version 6 had been replaced and the individual decisions withdrawn, the sensible course would have been a case-management conference or directions to identify suitable cases, settle the pleadings and evidence, and address permission and listing.
5. Permission was granted to withdraw the claims of CBW, GUN, NEA and HCH. Consideration of costs was adjourned.

First-instance judicial review decision. The judgment records earlier case-management orders and stays made by Kimblin J, but no appellate decision.