The High Court has allowed a Pakistani asylum applicant to amend his judicial review case to add a challenge to a rule deeming certain notices served after they are sent by registered post. The court did not decide whether the rule is valid or whether the tribunal’s decision should be quashed.
The case concerns a December 2016 decision by the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (IPAT), refusing to accept the applicant’s late appeal against a decision to transfer responsibility for his asylum application to the United Kingdom. The transfer decision followed the UK’s agreement to take charge of the application under the Dublin III Regulation.
The applicant said he had not received the November 2015 transfer notification, although the delivery record showed that someone named Klaudia signed for it at his address. The tribunal refused the late appeal, citing registered service at the correct address and its view that it knew of no similar late appeal accepted in comparable circumstances.
The applicant’s original judicial review grounds challenged that refusal on fair procedures, effectiveness, irrationality and legitimate expectation grounds. At a hearing, his counsel raised further legal issues. The judge adjourned the hearing so the applicant could make a formal application to amend the grounds. The proposed amendment ultimately pursued a declaration that Regulation 18(3) of the European Union (Dublin System) Regulations 2014 was beyond the powers conferred by the European Communities Act 1972. The applicant’s legal representatives said they had overlooked the point when seeking leave for judicial review.
The respondents opposed the amendment, pointing to the delay, the public interest in prompt decisions about which state is responsible for protection applications, and the additional relief sought. The judge said the balance between the integrity of decision-making and access to the courts was finely poised. He also noted that the proposed ground was arguable, concerned a point of law, and was not said to cause significant prejudice to the respondents.
Applying the interests of justice, Mr Justice David Keane granted permission to amend, with considerable hesitation and on the particular facts of the case. The order permits the new ground and related declaration claim to be added to the proceedings. It does not determine the validity of Regulation 18(3), the original grounds, or the application to quash the tribunal’s decision.