Reopening of pre-Balajigari permission applications in Rule 322(5) cases

The Court of Appeal (Lord Justice Hickinbottom and Lady Justice Carr) gives its judgment in R (Saud Akram) v Secretary of State for the Home Department [2020] EWCA Civ 1072.

The issue before the Court of Appeal was whether it should reopen the Applicant's application for permission to appeal, refused on 18 June 2017.

The Applicant, by way of a Judicial Review claim, challenged the Secretary of State for the Home Department's decision to refuse his application for indefinite leave to remain, under Paragraph 322(5) of the Immigration Rules, on the ground that he had been dishonest in his dealing with HMRC and his character was such that it was undesirable for him to be given indefinite leave to remain. Permission to apply for Judicial Review was refused. Permission to appeal from the refusal of permission to apply for Judicial Review was also refused.

On 16 April 2019, the Court of Appeal handed down its judgment in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673. In the light of that judgment, the Applicant applied to the Court of Appeal to reopen his refused application for permission to appeal. He argued that the Secretary of State for the Home Department's decision was unlawful because "minded to refuse" procedure, which was contemplated in Balajigari, was not followed, and certain factors were not taken into account.

The Court of Appeal held that there was no unfairness, despite Balajigari and the fact that there was no "minded to refuse" letter. The Court of Appeal also held that the application for indefinite leave to remain was lawfully refused and all relevant matters were considered.

Further, the Court of Appeal held that the Applicant would not suffer any injustice by the refusal to reopen his refused application for permission to appeal and that his case "falls considerably short of the high hurdle inherent in CPR rule 52.30 of a truly exceptional case where the principle of finality of litigation must be displaced". The Court of Appeal added that the ability to make a fresh application and delay in applying to reopen the refused application for permission to appeal were also relevant factors.

In conclusion, the Court of Appeal refused the application to reopen the refusal of permission to appeal.

The Court of Appeal's judgment is available here

Zane Malik appeared for the Secretary of State for the Home Department.