SJ & Ors v The Advocate General for Scotland
This week, the Advocate General for Scotland settled proceedings without the need for an interim orders hearing. Bilaal Shabbir, Advocate, acted for the Petitioners, instructed by Sonya Imtiaz of Ali & Co.
The case concerned a family who were granted leave under the family reunion route to join their refugee sponsor in the UK. The family later applied for settlement together. The refugee sponsor’s application succeeded but the remaining family members’ applications were invalidated on the basis that they did not hold leave which qualified them to apply for settlement.
Judicial review proceedings were raised challenging the decisions to invalidate the applications and seeking interim suspension of the decision. The challenge focused on the validity requirements in Appendix Settlement Protection which allowed for dependants to qualify for settlement with the Sponsor if they held family reunion leave.
An interim positive order under section 47(2) of the Court of Session Act 1988 was also sought to update the terms of the Petitioners’ eVisas. In the unusual circumstances of this case, there was a mismatch between the terms of the decision letter, which suggested that the family had no leave, and the eVisa system which referred to an unrelated pending application.
An interim orders hearing had been assigned for yesterday in the Court of Session. Following negotiations between the parties, however, the Secretary of State agreed to withdraw the decisions and re-make them within 30 days.
Interim positive orders under section 47(2) are sometimes sought in judicial review proceedings where someone is left without access to the conditions which attached to their status e.g. a right to work or access public funds. An interim positive order, together with interim suspension of the challenged decision would have the effect of restoring the status quo whilst the action proceeds as normal and would allow a person benefit from the conditions which they had before any decision was made. 
