R Pamela Alburtha Grace (Appellant/Claimant) v Secretary of state for the Home Department (Respondent/Defendant)

The only issue in relation to which permission to appeal has been granted in this case concerns the approach which a judge of the Administrative Court or the Upper Tribunal must adopt when considering whether to certify an application for permission to apply for judicial review as "totally without merit" ("TWM").

By CPR 54.12(7) and its sister provision in the Upper Tribunal Rules rule 30(4A), a claimant whose application has been considered on the papers by a judge who has found it to be TWM is debarred from renewing his application at an oral hearing in the Administrative Court or the Upper Tribunal. His only recourse is to a judge of the Court of Appeal who will decide whether or not to grant permission to apply for judicial review or permission to appeal. That decision is confined to a consideration on the papers. The judge has no discretion to adjourn the application to an oral hearing. If the judge in the Court of Appeal, having considered the papers, refuses the application, that is the end of the matter: the application for permission to apply for judicial review will have been finally refused without its ever having been the subject of an oral hearing. The purpose of this recent innovation is to ensure that hopeless cases do not take up more of the time of respondents and of the court and the tribunal than is reasonable and proportionate.

Because we are concerned only with the TWM criteria and not with the facts of this particular case, I do not propose to set them out in detail. However, it will provide some context to the case if I summarise them briefly. They are not at all untypical.

The appellant was born on 14th December 1958. She entered the United Kingdom when aged 43 or thereabouts on 22nd October 2002. She was given temporary leave subject to conditions, but absconded almost immediately. She then lived here illegally for about ten years before making any attempt to regularise her immigration status. She finally made an application for leave to remain on 6th November 2012, when she would have been aged 53. At some time during her residency here she began a relationship with Mr Alton Maynard. It is assumed that that relationship is a genuine and subsisting one. The appellant has no children in this jurisdiction.

The Secretary of State considered the application, both under and outside the Immigration Rules. She considered that the appellant could not establish her case under the Rules or by reference to Article 8 of the ECHR and she refused the application with no right of appeal accorded to the appellant. The appellant issued a claim form on 13th May 2013. On 1st July 2013 the Secretary of State acknowledged service. The acknowledgement has annexed to it some 18 pages of grounds of resistance to the application which are set out in a detailed and cogent way.

The application was then considered on the papers by Kenneth Parker J, who, on 29th August 2013, refused permission to apply for judicial review. His reasons were stated as follows:

"1. You entered the UK on temporary admission on 22 October 2002. You were required as a condition of your temporary admission to report on 30 October 2002. You did not report but absconded. As an illegal entrant you apparently formed a relationship with a British citizen, knowing full well that you had no right to be in the UK. On 6 November 2012, that is, 10 years after you illegally entered the UK, you applied for leave to remain.

2. You were 41 [that is slightly in error] when you arrived in the UK and you have therefore spent most of your life (including your formative years) in Jamaica. There is no apparent reason why you could not readily reintegrate into the social and cultural life of Jamaica. There is no obvious impediment to your partner, who knew or ought to have known of your precarious immigration position, returning with you.

3. In these circumstances, the decision to refuse you leave to remain is not an arguable interference with any right to private life under Article 8ECHR."

Underneath that there are two bullet points, the second of which states: "Case is considered to be totally without merit".

An application was made for permission to appeal to this Court raising issues under the Immigration Rules and Article 8, together with a request that this Court clarify the TWM test, but when granting permission Longmore LJ limited the grounds to the issue of providing appropriate guidance on the meaning of TWM.

The phrase TWM first came into the lexicon of civil procedure in the context of civil restraint orders:...