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More Presidential guidance on judicial review conduct


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Yet more Presidential guidance on how to conduct judicial review in the Upper Tribunal, this time in the context of granting permission to proceed with judicial review claims to the lead applicants and grants of interim relief preventing removal in challenges by Afghan nationals to their removal to Afghanistan based on the reported reluctance of the Afghan authorities to accept them. There is a substantive hearing scheduled for March 2016, I understand.

The case, R (on the application of Naziri and Others) v Secretary of State for the Home Department (JR – scope – evidence) IJR [2015] UKUT 437 (IAC), is from a while back and I just found it in my drafts folder. The main subject matter is hugely important in Afghan asylum cases but in the meantime the significance of the case, if any, is limited to guidance on the conduct of judicial review proceedings. The official headnote:

(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker.

(ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings.

(iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review.

(iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal.

(v) Where a draft judgment is circulated in advance of handing down the function of parties and their representatives is confined to notifying mis-spellings, formatting defects, inadvertent factual errors, ambiguities of expression and kindred blemishes: *Edwards & Ors R (on the application of) v Environment Agency & Ors* [2008] UKHL 22 applied.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.