R v Secretary of State for the Home Department, ex parte Sholola
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1991 |
| Date | 21 November 1991 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Simon Brown J
A Riza QC for the applicant
I Ashford Thom for the respondent
Cases referred to in the judgment:
Taj Mohd Swati v Secretary of State for the Home Department [1986] Imm AR 88.
R v Secretary of State for the Home Department ex parte Nazir Chinoy The Times 16 April 1991.
Judicial review application inter partes to set aside leave to move granted ex parte the circumstances in which such an application should be entertained.
The applicant for judicial review was a citizen of Nigeria who had been refused a variation of his leave and whom the Secretary of State had subsequently concluded had become an overstayer. The Secretary of State had accordingly decided to initiate deportation proceedings against him. It was the applicant's contention, inter alia, that he had never received the notice of refusal of variation of leave, which had been sent to his representative but which had not been collected by the representative.
Leave to move was initially refused on the papers but subsequently granted by Auld J at an ex parte hearing. The Secretary of State then applied for that leave to be set aside. The court was hampered by the fact that no transcript of the proceedings before Auld J was before it. The learned judge, in refusing to set aside the leave granted, reviewed the circumstances in which that power should be exercised.
Held
1. Following ex parte Nazir Chinoy the power should be exercised only in a very plain case.
2. It was not sufficient to show that the case was distinctly unpromising and most likely to fail: nor that the judge hearing the application to set aside would himself not have granted leave.
3. It was necessary to show, for example that there was something tantamount to a quasi-jurisdictional bar to review, such as arises in a routine port refusal case, the ex parte Swati type of case: or to show that some bald point of statutory construction upon which the application was founded was manifestly unarguable: or if leave had been granted per incuriam of some binding authority: or if the application were based on a factual foundation which could speedily be shown not to exist: or based on a serious non-disclosure of material facts.
4. The above was not an exhaustive list of the circumstances which would justify setting aside the leave granted, but indicated the sort of circumstances that should obtain.
Simon Brown J: Before the court is an application by the respondent Department of State, the Home Office, to set aside the grant of leave to this applicant to move for judicial review of a series of adverse immigration decisions taken against him and culminating in a deportation order signed on 4 February 1991. To put the present application in its broad factual context, the basic facts are these. The applicant is a 31-year-old...
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