Case numbers: AC-2023-LON-002042 (CO/2452/2023)
In the High Court of Justice
King’s Bench Division
20 September 2023
The Honourable Mrs Justice Collins Rice
The King on the application of
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 parties:
ORDER by the Honourable Mrs Justice Collins Rice
- The Claimant appearing to be a vulnerable adult, her application for anonymity is granted as being necessary, and she is to be referred to for all purposes in these proceedings as NR.
- The application for permission to apply for judicial review is refused.
- The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of £976.
- The Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.
The application does not raise an arguable case that the decision complained of is inconsistent with the Immigration and Nationality (Fees) Regulations 2018 (the “INR”). The refusal to consider a possible fee waiver on its merits appears to be entirely in accordance with the INR.
Nor does the application raise an arguable case that the Defendant ought to have exercised a residual discretion to waive fees outside the INR. On its face, the INR appears to be a complete statement of the fees regime, and to exclude the possibility of making a fees decision on any other basis.
The principal thrust of the application is instead that the INR are themselves unlawful. That appears to be a somewhat academic objection. The Defendant seems to have accepted that the Claimant is able to regularise her position by applying for (time limited) leave to remain and that, having already been accepted as destitute, fee waiver is available and she will not be at risk of finding herself without access to public funds. As the Defendant explains the position, renewed applications may be subsequently be made on the same basis until the 10 year threshold for ILR is reached. Alternatively, should her financial position improve in the meantime, the Claimant may reapply for ILR and pay the fee. It is by no means apparent in these circumstances that the Claimant faces any practical detriment or prejudice in pursuing ILR as a result of the decision complained of.
This claim was issued on 3rd July 2023 and served on 10th July 2023. No application for urgent consideration (by form N463) was made. The Claimant now draws attention to section 9 of her claim form – that is, the section headed ‘other applications (non-urgent)’ – in which she seeks resolution of her application, to an expedited timetable, ‘before the expiry of her visa’. It appears that her visa expires on 30th September 2023. The papers were referred to me for consideration on 20th September 2023.
It is not appropriate for a request for expedition to this sort of timetable to be made in section 9 of a claim form. An application for urgent consideration is essential. The failure to make such an application has resulted in these papers not having been referred for judicial consideration until the timetable sought has become unrealistic.
Should the Claimant seek oral renewal of this application, the Defendant appears to indicate that in any event a protective application for limited leave to remain and for fee waiver would be sympathetically received in the meantime. Alternatively, the Claimant may accompany any renewal notice with an application for urgent consideration explaining its necessity.