The High Court has refused a judicial review challenge to the decision upholding the refusal of a residence card to Azhar Mehmood, a Pakistani national and brother of Mazhar Mahmood, a British citizen living in Ireland.
Mr Justice David Keane ruled on 20 June 2019 that the Minister for Justice and Equality’s review had been carried out under the applicable 2006 Regulations. Although the review decision referred to the 2015 Regulations, the court accepted sworn evidence that this was an administrative error caused by the use of an updated template letter.
The residence-card application was refused at first instance on 22 December 2015. The applicants sought a review on 8 December 2015. The 2006 Regulations had been replaced from 1 February 2016, but a transitional provision meant the review remained governed by the earlier rules. The Minister’s decision of 4 October 2016 upheld the refusal while citing the 2015 Regulations.
The Minister said the review officer had considered the case under the 2006 Regulations, as shown in the recommendation and review officer decision. Those underlying documents were not routinely given to applicants. The officer used a template changed in September 2016 to refer to the 2015 Regulations and did not amend the references. The court accepted that explanation and found the earlier rules had been properly applied.
The applicants had initially challenged the decision on the basis that the wrong regulations had been used. After the Minister’s evidence, they argued that the incorrect reference itself was an error on the face of the record. The Minister objected that this was a new ground that had not been included in the grounds on which leave to seek judicial review was granted. The court upheld that objection, noting that the applicants had not sought the documents or applied to amend their grounds.
The judge also addressed the new argument briefly, expressly as obiter, meaning it was not necessary to the decision. He said the reference to the 2015 Regulations was an error on the face of the decision, but would have been inclined to excuse it as an inconsequential template mistake because the 2006 Regulations had been applied to the substance of the case. He did not decide whether the 2006 definition of a permitted family member was broader than the 2015 definition.
The Minister’s separate argument that any use of the 2015 Regulations could not have prejudiced the applicants was unnecessary to decide. The court refused the application for judicial review. It did not quash the review decision or decide the underlying entitlement to a residence card.