Tribunal decisions

The decision

Case No: JR-2024-LON-002693
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

26 August 2025
Before:

UPPER TRIBUNAL JUDGE O’BRIEN

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Between:

THE KING
on the application of
JAFRUDEEN HAJA MAIDEEN
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr J Martin of Counsel
(instructed by Masters Solicitors), for the applicant

Mr M Biggs of Counsel
(instructed by the Government Legal Department) for the respondent

Hearing date: 19 August 2025

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J U D G M E N T

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Judge O’Brien:

1. By application dated 2 October 2024, the applicant seeks to challenge the respondent’s decision dated 4 July 2024 to certify as clearly unfounded his human rights claim made by application dated 22 April 2023.

2. The applicant has held British Overseas Citizenship (BOC) since 9 May 2010. Prior to the instant claim, the applicant had made previous unsuccessful applications for registration as a British Citizen (8 December 2011, refused on 17 February 2012) and then leave to remain as a stateless person (29 December 2019, refused on 1 August 2022 and refusal upheld on administrative review on 16 September 2022).

3. The application to apply for judicial review was refused on the papers by Upper Tribunal Judge Mahmood in a decision sealed on 4 December 2024. The application was renewed on 11 December 2024, apparently on the same grounds. However, Mr Martin having clarified the basis of the application at an oral hearing, permission was granted by Upper Tribunal Judge Jackson in an order sealed on 19 January 2025. Judge Jackson, nevertheless, directed that the grounds of review be amended in accordance with Mr Martin's submissions. Her order in full is:

‘(i) Applicant to amend their grounds of claim no later than 4pm on 31 January 2025.

(ii) Permission is granted (conditional on satisfaction of (i) above) on the sole ground that the Respondent’s decision to certify the Applicant’s claim as clearly unfounded pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002 arguably fails to take into account the Applicant’s need to renounce his British Overseas citizenship.’

4. Mr Martin's amended grounds can be found at page 227 of the consolidated bundle onwards, and comprise 3 headline grounds: the respondent had erred in law considering the immigration rules by failing to take into account important factors; the respondent has made mistakes of fact and erred in law in considering Article 8 outside the rules; and the decision to certify the application was unlawful.

5. Subsequently, on 5 March 2025, the respondent agreed to reconsider the decision under challenge and a consent order was drafted for the applicant to review. The recital to that consent order says as follows:

‘UPON the Respondent agreeing to withdraw and reconsider the Decision dated 3 July 2024 to refuse the Applicant’s claim for Further Leave to Remain on the basis of Family and Private Life under section 94(1) of the Nationality, Immigration and Asylum Act 2002, within 3 months of sealing this consent order (absent special circumstances)’

6. Consequently, the offer was to withdraw and reconsider the decision to refuse the applicant’s human rights claim.

7. By e-mail dated 10 March 2025, the applicant indicated that he was willing to withdraw his application for judicial review provided that the respondent agreed to pay his reasonable costs. That was not agreeable to the respondent, who instead proposed a consent order in similar terms as before save that the matter of costs would be decided by the Tribunal. That correspondence, dated 19 March 2025, reiterated criticisms of the amended grounds already made in the respondent’s correspondence of 5 March.

8. That offer was rejected in a letter dated 31 March 2025, which indicated that the applicant was unwilling to withdraw the application and intended to pursue it, being ‘hopeful of success’.

9. The respondent submitted detailed grounds of defence on 5 June 2025. She argued that the application was academic, having agreed to reconsider the decision of 4 July 2024. The respondent criticised in any event the amended grounds as going further than permitted by Judge Jackson, essentially reiterating the criticisms previously set out in correspondence.

The Parties’ Submissions

10. It is argued before me that the application is not academic because the respondent has indicated a defective approach to reconsideration, essentially restricting her consideration of the applicant’s BOC and need to renounce it in order to re-acquire Indian citizenship as relevant only to Article 8 outside the Immigration Rules, and also proceeding on the basis that he has changed the factual basis of his claim. It is submitted that I can give guidance to the respondent on how to reconsider the claim. It is argued in the alternative that even if this application is academic it is an exceptional case such that the Tribunal should consider it nevertheless. The basis for that submission again appears to be the need to give guidance to the respondent on the need to consider renunciation of BOC both within and outside the Immigration Rules, and a suggestion that there are likely to be significant numbers of similar cases which would benefit from my consideration and guidance.

11. The respondent argues that she has indicated an unqualified intention to withdraw the decision, that nothing she has said in correspondence or pleadings suggests an erroneous approach to reconsideration, that even if she had it is not this Tribunal's job to pre-empt an erroneous decision, and that there is no evidence of any wider need for consideration of what is clearly an academic point.

Consideration

12. Judge Jackson permitted only a single ground to be argued in these proceedings: failure to take into account a relevant matter (the need for the appellant to renounce his BOC) when considering certification under section 94. However, the amended grounds of review expressly plead 3 separate grounds: the first 2 going to alleged unlawfulness in assessment of the substantive human rights claim, and the third pleading an unlawful approach to certification.

13. I accept that Mr Martin did not intend to exceed the ambit of permission, intending merely to set out a detailed argument for why certification was impermissible. However, by challenging the substantive human rights assessment, exceed that ambit he did.

14. In his amended grounds, Mr Martin also states that the applicant did not renounce his Indian citizenship but rather that it had ceased by operation of Indian law. However, in the original application, it was asserted on at least two occasions that the applicant had renounced his Indian citizenship.

15. In her letter of 5 March 2025, the respondent makes the following criticisms of the pleaded grounds. The amended grounds go further than the grant of permission, and the appellant’s pleaded factual case is different from that previously advanced. The letter continued that this approach had caused the respondent greater work but nevertheless that she was willing to agreed to no order for costs.

16. The respondent’s letter of 19 March 2025 reiterated these criticisms as well as emphasising the significant criticisms made by Judge Jackson of the original pleadings. The detailed grounds of defence reiterate again the criticisms made in earlier correspondence but also assert that the respondent’s agreement to reconsider the decision provided the applicant with the fullest remedy he could reasonably expect, were he to succeed.

17. In my judgement, that is correct. The high watermark of what I could provide to the applicant is an order quashing the respondent’s decision of 4 July 2024, a decision which the respondent has already agreed to withdraw, and a declaration that it was unlawful to overlook the applicant’s need to renounce BOC when assessing his articulate claim. However, that was the basis upon which the respondent has agreed to withdraw the decision and therefore the basis upon which the respondent can be expected to undertake the reconsideration. In other words, this is truly an academic issue.

18. Neither the correspondence nor the detailed grounds suggest that the respondent is going to undertake anything other than a full reconsideration of the applicant’s Article 8 claim. In particular, nothing in that correspondence could reasonably understood to suggest that the applicant’s need to renounce BOC will be taken into account only outside the rules and disregarded in the respondent’s consideration of Appendix PL.

19. Even if there were a risk that the respondent was to take such an erroneous approach, this application is premature.

20. There is no other remedy sought, such as damages, and there is no wider public principle at stake. Indeed, the only substantiated basis for wishing me to proceed is to give the applicant personal reassurance. There is, as both Counsel agree, no evidence of similar cases for which resolution of the grounds of challenge would be of benefit.

21. For these reasons, the application is dismissed.

Costs

22. The parties addressed me on the issue of costs. For the respondent, Mr Biggs submitted that the applicant’s conduct this application was such as to justify awarding the respondent the whole of her costs on an indemnity basis. Alternatively, she should be awarded the whole of her costs on the standard basis. Even if I could not be persuaded to take either of those approaches, she should be awarded the whole of her costs from the date on which she offered to withdraw the decision with no order as to costs, with no order prior to that point.

23. Mr Martin accepted that he could not sensibly resist the latter approach but argued against either of the respondent’s other submissions. The respondent had agreed to reconsider the decision and so the appellant had obtained the relief sought. It was inappropriate therefore for the respondent to be awarded all of her costs. It had been reasonable for the applicant to be concerned about the basis on which the respondent would reconsider her decision, and certainly not so unreasonable as to justify indemnity costs.

24. The applicant had obtained the relief sought. However, that concession had been made by the respondent only after the applicant’s position had been clarified by Mr Martin orally, and his pleadings had been amended by order of Judge Jackson. It was not seriously in contention that the respondent should have her costs from the date she offered to withdraw her decision. In my judgment, the applicant should bear the costs of and occasioned by her amendment. The application had been properly refused on the papers by Judge Mahood. Whilst not satisfied that the applicant’s behaviour was sufficiently egregious as to justify ordering assessment on an indemnity basis, I did find that it bordered on being so unreasonable. In all of the circumstance, I find that the only just order is for the applicant to pay the whole of the respondent’s costs to be assessed on the standard basis.

Order

1. The applicant shall pay the respondent’s costs to be assessed on the standard basis if not agreed.

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