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Mandatory orders in immigration judicial review applications

The issue of when the Upper Tribunal might make a mandatory order requiring the Home Office to act in a specific way was considered in the case of R (on the application of Sultana) v Secretary of State for the Home Department (mandatory order – basic principles) IJR [2015] UKUT 226 (IAC).

The judgment is a short one and the headnote says it all this time:

1. In the great majority of cases where the court decides that the impugned decision is contaminated by some public law misdemeanour, the remedy granted is a quashing order whereby the respondent is obliged to make a fresh decision, taking into account the judgment of the court.

2. The remedy of a mandatory order is rarely granted.  It is appropriate only in cases where it is clear to the court that the respondent is legally obliged to take a certain course of action, normally involving the conferral of some benefit or advantage on the challenging party, with no choice or discretion.  The course that the respondent is ordered by the court to take in a mandatory order must be “the sole result that is legally permissible”.

In short, previously proceedings to a decision to refuse entry clearance had been settled with the decision under challenge being withdrawn. Rather than issuing entry clearance, though, the Home Office had insisted on a further interview. The applicant brought a challenge on the basis that the demand for an interview was unlawful, the tribunal should make a mandatory order requiring a grant of entry clearance and the applicant was entitled to costs.

The application was dismissed. Interestingly, no order was made for the applicant to pay the Home Office legal costs despite the Home Office winning the case. The reasons are set out at paragraph 7:

Firstly, it seems highly likely that if the error conceded on behalf of the Respondent had been avoided initially, the entry clearance applications would have succeeded. Secondly, at the time when the failure to compile a pre-action protocol letter occurred, it appears that the Applicant did not have the benefit of legal representation. Thirdly, this failure had no consequence of any import, given the Respondent’s subsequent stance. Fourthly, the Respondent’s insistence, maintained throughout the greater part of these proceedings, that the Applicant must undergo a further interview by the ECO, come what may, was, in my view, misconceived. There is no legal rule of which I am aware imposing such a requirement in mandatory terms. Rather, the Respondent has a discretion which must be exercised in accordance with established public law principles. This misplaced insistence was not withdrawn until a very late stage: significantly, it was withdrawn. If one had stopped the clock at that point, on the hypothesis of the duly revised consent order being executed, I consider that if adjudication of the issue of costs had been required the Applicant would have been granted all or most of her costs. Viewing everything in the round, I conclude that it is fair and appropriate to make no order as to costs inter partes.

The case is a useful reminder that it is very hard to secure a concrete outcome from judicial review proceedings; all that normally happens is that the Home Office is required to re-take a decision. Sometimes the new decision will be the same as the original, sometimes it will be different. The new decision must be a lawful one, though, which is not infected with the unlawfulness of the first.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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