Issa & Ors -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtQueen's Bench DivisionAnonymity Order

Case No: JR-2022-BHM-000016

In the High Court of Justice
Queen’s Bench Division
Administrative Court

Date: 06/07/2022

Before:
His Honour Judge Rawlings

In the matter of an application for judicial review
THE QUEEN on the application of
(1) Jamila Ali Issa
(2) ASJ
-v-
Secretary of State for the Home Department

Notification of the Judge’s decision on the application for permission
to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimants and the
Acknowledgement of Service filed by the Defendant

ORDER by His Honour Judge Rawlings
1. Permission is granted to challenge the Defendant’s decision not to treat the
Claimants’ applications for fee waiver as urgent, so that the application would
be dealt with before the Defendant puts in place a new fee waiver policy;
2. Permission is refused insofar as the skeleton argument in support of the
application for Judicial Review, may advance a claim that the Defendant has
unreasonably delayed in bringing in a new fee waiver policy;
3. Permission is refused to challenge the delay by the Defendant in dealing with
the Claimants’ applications for entry clearance;
4. The Second Claimant is granted anonymity and will hereafter be referred to as
“ASJ”; and
5. Either the First Claimant or ASJ’s father should apply to be appointed litigation
friend to ASJ for the purposes of his application for Judicial Review
Reasons for granting permission to challenge the Defendant’s decision not to treat the
application for fee waiver as urgent
1. In the Acknowledgement of Service, the Defendant accepts that, in spite of the fact
that a new fee waiver policy has not yet been put in place, the Claimants’ applications
for fee waivers can be dealt with before the new fee waiver policy is put in place, if the
Defendant agrees to treat them as urgent. Whilst the Defendant says that it has
decided not to treat the Claimants’ fee waiver applications as urgent, the Defendant
does not explain why or what criteria has been used in deciding not to treat the
Claimants’ fee waiver applications as urgent. In those circumstances, there appears to
be a real prospect of the Claimants demonstrating that the Defendant was wrong/acted
“Wednesbury unreasonably” in refusing to treat their applications for fee waivers as
urgent.
Reasons for refusing permission to bring a claim that the Defendant has unreasonably
delayed in bringing in a new fee waiver policy
1. Section 5 of the claim for Judicial Review says that the decisions that are challenged
are the delay in considering the Claimants’ applications for fee waivers and/or the
failure to make decisions on the applications for entry clearance. Any delay on the part
of the Defendant in bringing into force a new fee waiver policy does not therefore
appear to be within the scope of the claim for Judicial Review.
2. The skeleton argument in support of the claim for Judicial Review nonetheless makes
reference to the failure of the Defendant to meet her own deadlines for bringing into
force a new fee waiver policy.
3. For the avoidance of doubt, in so far as the Claimants’ skeleton argument does
evidence an intention by the Claimants to mount a stand-alone challenge to the
Defendants alleged delay in bringing into force a new fee waiver policy, such a claim
cannot be pursued because it is not within the scope of the claim for Judicial Review.
Delay by the Defendant in bringing into force a new fee waiver policy may, of course
be relevant to the “Wednesbury unreasonableness” of the Defendant’s decision not to
treat the Claimants’ applications for fee waivers as urgent.
Reasons for refusing permission to challenge the Defendant’s failure to determine
the Claimants’ applications for entry clearance
1. As payment of the fee for an application to enter the United Kingdom or waiver of that
fee is a prerequisite to the Defendant considering an application for permission to enter
the UK and the Claimants accept that they have not paid the fee and no fee waiver has
been granted, the Defendant cannot be said to be acting unreasonably in not dealing
with the Claimants’ entry applications.
Reasons for anonymity order and requirement for the appointment of a Litigation Friend
1. The second Claimant is under 2 years old it is appropriate that his anonymity is protected
and that a litigation friend is appointed to represent him in these proceedings.