If evidence that fundamentally undermines a claim for judicial review is included in the claim bundle, but not mentioned in the submissions made to the court before obtaining permission to proceed to a substantive hearing, should that permission be set aside? Does it make a difference if the defendant also failed to draw attention to that evidence before permission was granted?
In R (Mohammad Khan) v Secretary of State for the Home Department  EWCA Civ 416, the claimant, a national of Pakistan, had applied to the Secretary of State for leave to remain in the UK. He had claimed that he met the test of “long residence” in the UK under the version of the Immigration Rules that applied at the time by having lived here continuously for at least 14 years (1998-2012). The Secretary of State refused the application because the claimant had failed to provide “official” evidence to show that he had been in the UK for the first 4 years of the period relied upon (1998-2002).
The claimant challenged that decision by judicial review. Buried in his voluminous claim papers was a copy of a work permit application which he had made in 2002 stating that he had worked as a chef in Pakistan between 1998 and 2002. Plainly, if that statement was correct, the claimant had not been resident in the UK in those years and his application for leave to remain based on 14-year “long residence” ought never to have been made. However, nothing was said about this statement in the claim and the Secretary of State also failed to mention it in her summary grounds of defence.
The claimant failed in his first three attempts to obtain permission to apply for judicial review, but renewed his application in a hearing before Sullivan LJ in the Court of Appeal. As is usual, the Secretary of State was not represented at that hearing. Neither the written nor oral submissions made on behalf of the claimant drew Sullivan LJ’s attention to the statement made in the 2002 work permit application about the claimant’s employment in Pakistan between 1998 and 2002. Sullivan LJ granted permission to appeal.
The Secretary of State instructed new Counsel to review the case in light of Sullivan LJ’s order. The significance of the 2002 work permit application was spotted for the first time and the Secretary of State applied under CPR 52.9(1)(b) to have Sullivan LJ’s order set aside on the basis that he had not been given the full picture as to the evidence in the bundle.
The Court of Appeal (Beatson, Ryder and Longmore LLJ) unanimously held that the claimant had breached his duty of candour to the court by failing to explain a discrepancy between the factual premise of his claim and the evidence that he had filed in support of it. Giving the main judgment, Beatson LJ agreed with the Secretary of State that Sullivan LJ’s order should be set aside. Having reviewed the authorities on the duty of candour, Beatson LJ said:
“45. Notwithstanding the differences between without notice applications for injunctions and applications for permission to apply for judicial review and for permission to appeal, there is force in Mr Lewis’s submission that to limit the obligation of a claimant in judicial review proceedings in all circumstances to do no more than to furnish the material document and to say that there is no duty to draw the significance of a document to the attention of the court where the Secretary of State has not identified the point and relied on it in her decision or in the acknowledgement of service is unsatisfactory and would significantly dilute the duty of candour. The courts and tribunals which consider permission applications in judicial reviews in immigration cases and appeals from them have heavy and growing case-loads and the obligations on claimants, applicants for permission to appeal, and indeed the respondents to such applications should reflect the practical realities of dealing with the applications in a limited time. If, as Collins J stated in R (I) v Secretary of State for the Home Department  EWHC 3103 (Admin), claimants in judicial review proceedings must ensure that the judge dealing with the application has the full picture: in some circumstances to ensure this they will have to do more than just furnish the document. The position should be the same for those applying for permission to appeal from the first instance decisions in such proceedings.
46. It is clear from R (Sabir) v Secretary of State for the Home Department  EWCA Civ 1173 that where counsel knows something and keeps it from the court or makes a positively misleading statement, there will be a breach of the duty of candour which justifies setting aside permission to appeal. I referred to R (Lawler) v Restormel BC and R (Awuku and others) v Secretary of State for the Home Department at  above. Although those cases concerned applications for injunctions, it should follow from the judgments in them that providing a partial explanation in the statements of grounds and facts which is misleading will be a breach of the duty of candour in an application for judicial review even where it is not linked with a without notice application for an injunction. Beyond that, in particular, I do not consider that it suffices to provide a pile of undigested documents, particularly in a document heavy case, or where the claimant has knowledge which enables him or her to explain the full significance of a document. I also consider that in considering the effect of a failure to explain material in a disclosed document that is adverse to the claim, it is relevant to consider whether the failure to explain the material was innocent in the sense that the relevance of the material was not perceived.”
Ryder LJ agreed that Sullivan LJ’s order should be set aside. Longmore LJ agreed that the claimant had breached his duty of candour, but preferred simply to dismiss the substantive appeal. The full judgment is available here.
Gwion Lewis acted for the Secretary of State for the Home Department in the Court of Appeal.