24 Oct 2016, 43 mins ago

In R (On the Application Of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298 the Court of Appeal subjected the SSHD to stinging criticism both for the way in which she handled the application and the management of the subsequent litigation.

It is hard not to sympathize with the Appellant, a Nigerian national, who applied for leave to remain as a student in April 2013 whilst legally in the UK. He did not keep a copy of the application or proof of delivery and the Home Office refused to believe that he had made the application, throwing his plans for study into disarray. His course provider was not given the requisite confirmation that he could continue studying by the Home Office so they removed him from the course on 31 May 2013. He made a further application to the Home Office on 16 July 2013, but this was refused on 27 August 2013. The reasons for the refusal of that application suggested that if he had indeed made the April 2013 application then that application would have been successful. He was told when the July 2013 application was refused that he had no right of appeal and needed to make arrangements leave the UK.

It was when making these arrangements that the applicant was provided with the evidence he needed to prove he had made the April 2013 application to the Home Office by… the Home Office. When he sought the release of his passports to return to Nigeria the Home Office confirmed that they held not only the passport that had been submitted in support of 16 July 2013 application but also three passports that had been submitted in support of the April 2013 application. These three passports had been checked into their secure passport bank in April 2013.

Upon his return to Nigeria the applicant commenced Judicial Review proceedings against the Home Office. There are a number of mechanisms in place to ensure that litigation does not proceed unnecessarily and one would of thought that this was a classic case where the Home Office could seek to rectify their error at an early stage. However, the Government Legal Department would not be deterred and the case was not resolved until it reached, an understandably exasperated, Court of Appeal.

The Home Office continued to maintain that an application had not been made in April 2013 but despite repeated questioning in the Court of Appeal could provide no explanation as to why they might otherwise have gained possession of the Appellant’s passports at that time. As well as bemoaning this lack of explanation, the Court of Appeal subjected the SSHD to criticism for the way in which she had conducted the litigation, in particular:

  1. Running four “deeply unattractive” technical arguments;
  2. Making a “disingenuous” argument;
  3. Making an argument that “singularly lacks merit”;
  4. Arguing that the Appellant should have appealed the decision rather than making an application for judicial review, despite the fact that they had written to him to inform him that he had no right of appeal;
  5. Raising arguments that had not been raised previously in the proceedings;
  6. Taking an “inappropriate position”;
  7. Trying to take advantage of an “error in her own office” to put the appellant in a “no-win position”.

Sympathy was expressed for the Appellant and relief granted to put him, as far as possible, in the situation he would have been in had his April 2013 application not been lost.

The Home Office’s intransigence in this instance is particularly stark and provides an unfortunate example of it both making administrative errors and refusing to try and make amends for them.