R (on the application of Bilal Mahmood) v. SSHD [2014] UKUT 00439 (IAC) – Case Summary

In R (on the application of Bilal Mahmood) v. Secretary of State for the Home Department (continuing duty to reassess) IJR [2014] UKUT 00439 (IAC), the President of the Upper Tribunal, Immigration and Asylum Chamber articulates some important principles relating to judicial review.

The availability of judicial review as a remedy of last resort is reiterated – the Tribunal emphasises that where the Applicant has an 'Out of Country' right of appeal, there is a rebuttable presumption that permission to apply for judicial review will not be granted. This presumption will only be rebutted where there is "suitable evidence" of "special or exceptional circumstances".

Perhaps the most important point raised in this case is that there is a continuing duty of candour on the Applicant, throughout the judicial review process: "This means that [the Applicant] must put before the Judge all relevant material and in particular material which may be adverse, or may appear to be adverse. They must not leave the situation that the Judge does not have a full picture in order to make the relevant decision". The Upper Tribunal articulates two clear examples of how this duty to disclose "all material facts" must be met:

• If the Applicant alleges facts in his application for permission to apply for judicial review, particularly facts which are disputed by the Respondent, then he must provide evidence of these facts as soon as is practicable;
• In circumstances where "it is self-evident that the Applicant relies on alleged facts which are not documented in the papers – such as conversations or dates of receipt of documents or verbal assurances or promises allegedly given, or facts which have previously been disputed by the Respondent" a detailed and candid witness statement is required at the permission stage, without specific direction from the Court.

It is of note that the duty of candour is a "bilateral", meaning that it applies equally to the Respondent.

The practical impact of a continuing duty of candour is that the Applicant must pay heed to this duty throughout proceedings, not just at the application for permission stage. When the Respondent files her Acknowledgement of Service, the Applicant's legal representative should examine the viability of the application of Judicial Review in light of any further material served. If the application for judicial review is unsustainable in light of this further evidence then it should be promptly withdrawn.