Doleance claim challenging immigration decision timed out

Background

In Idoniboye-Obu v Treasury (CHP 26/0006) (19.08.26), Acting Deemster Arrowsmith recently struck out a doleance claim challenging the validity of a refusal to grant the Claimant indefinite leave to remain (ILR).

Rule 14.23(1) provides that a doleance claim must be filed:

“(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose”.

In this case, the ILR decision being challenged was on 22nd August 2025. The doleance claim filed on 18th December 2025 was, on the face of it, 26 days late.

The background was not straightforward.

One ground of the doleance claim alleged breach of Regulation 4(3) of the Immigration (Notices) Regulations 2008, requiring that the refusal notice: “must be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax”.

Before filing the doleance claim on 18th December 2025, the Claimant applied to extend time to file a statutory appeal. On 17th September 2025, that application had been refused by Immigration Adjudicator Brooks. This decision was challenged (including, notably, on the Regulation 4(3) ground), on 19th September 2025. Permission to appeal (PTA) was refused by Immigration Adjudicator Brooks on 30th September 2025. The Appeal Division dismissed a further PTA application on 16th December 2025, for lack of jurisdiction, determining that any challenge would rest with an application to the Civil Division. The Claimant, a litigant in person, filed a doleance claim 2 days later.

Principles on extending time to file a doleance claim

The High Court retains a jurisdiction, under Rule 7.2(2)(a), to extend time to file a doleance claim.

In Clarkson & another v Department of Infrastructure & other (CHP 2011/43) (30.09.11), Deemster Doyle held:

“51. The burden plainly lies on the applicants to persuade the court to exercise its discretion in their favour and grant an extension of time and permission to proceed with their doleance claim out of time.

52. In exercising its discretion the court must consider all the circumstances of the case and a wide range of factors including whether there was a good reason for the delay and if not whether matters of general public importance are raised on the face of the doleance claim and it is otherwise appropriate for it to proceed. The court must also consider any evidence and arguments on prejudice and detrimental effect on good administration”.

In Tels Ltd v Braddan Parish Commissioners (CHP 2010/77) (15.04.11), Deeemster Corlett held that an issue of delay and non-compliance with Rule 14.23(1): “has to be brought to the attention of the court at the earliest possible opportunity in order that, if appropriate, the court may dispose of the matter by way of a preliminary issue”.

(In Idoniboye-Obu, the issue was raised on the Defendant’s strike-out application).

Exhausting alternative remedies

Doleance is an equitable remedy of last resort. In Petition of Kenyon (CP 2001/35) (10.04.01), Deemster Cain approved dicta from, or commentary on, several English cases on judicial review, including:

“[I]n giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant… [W]here Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided” (R -v- Secretary of State for the Home Department, ex parte Swati (1986) I W.L.R. 477)… It is a cardinal principle of judicial review that it is a remedy of last resort (per Sir John Donaldson in ex p. Goldstraw (1983) 3 All ER 257, 262)”.

The principle from Kenyon that doleance is a remedy of last resort was applied by Deemster Doyle in Seaside Shipping Ltd v Department of Transport & another (CP 2007/99) (10.07.08) (at § 40).

The exhaustion of alternative remedies issue arose in an earlier decision in the Clarkson litigation, where Kenyon was unsuccessfully relied upon.

On 15th March 2011, Deemster Doyle, in effect, distinguished Kenyon and held (at § 241): “The argument of the First Defendants based on Kenyon 2001-03 MLR 1 that they must first exhaust all remedies before lodging a doleance claim is misconceived as [s] 92(7) of [the Highways Act 1986] does not provide them with an effective remedy in this respect. The way to obtain an effective and appropriate remedy in such circumstances was to file, on a timely basis, a doleance claim seeking quashing orders”. It is a moot point whether the facts of Clarkson merited, in effect, distinguishing the well-established principles above, as enunciated in Kenyon.

In Idoniboye-Obu, Acting Deemster Arrowsmith first rejected (at § 34) a submission that no immigration decision had technically been made, as it had been defective.

And at § 48(1) he rejected the Defendant’s submission that the Claimant had failed to exhaust his statutory appeal route, holding: “the relief sought in the Doleance Claim is for a wholly distinct judicial review relief and is not a remedy that could have been obtained within the statutory appeal process before the Immigration Adjudicator”.

Similarly, at § 48(3), he held that a High Court application (for leave to appeal out of time to challenge the original decision and the Immigration Adjudicator’s refusal of leave): “would surely have been doomed to fail”. The application: “would not have achieved the remedy which the Doleance Claim seeks to achieve”.

The above reasoning is interesting, for several reasons:

• in Idoniboye-Obu, it was the public authority seeking to rely on Kenyon (whereas, by contrast, in Clarkson, it was the doleance Claimants);
• the Court in Idoniboye-Obu, arguably, or in effect, also distinguished Kenyon: in Clarkson, the rationale for doing so had been that the statutory remedy did: “not provide… an effective remedy”, and in Idoniboye-Obu, it was that the doleance relief was: “wholly distinct”;
• thus in each of Clarkson and Idoniboye-Obu, a submission relying on the well-established principles in Kenyon was rejected;
• these rejections raise the question whether any difference, however slight or technical, between the remedy obtainable via a statutory appeal, as compared to a remedy obtainable via doleance, may justly operate as a bar to doleance: as Judge of Appeal Tattersall and Deemster Corlett noted in Montpelier Tax Planning (Isle of Man) Ltd (In liquidation) v Gittins & others (2DS 2012/45) (08.06.15) (at § 143), the primary duty of any Court is: “to achieve justice as between the parties”, also noting Lord Collins’ observation in Texan Management [Ltd] & Others v Pacific Electric Wire & Cable Company [Ltd] [2009] UKPC 46: “… in the pursuit of justice, procedure is a servant not a master”;
• by contrast, in England and Wales, the principle underlying Kenyon – ie. that a Claimant: “had a suitable alternative remedy, in which case judicial review proceedings were inappropriate” – was re-affirmed recently by Falk LJ in the Court of Appeal in R (Tomlinson) v Secretary of State for the Home Department [2025] 3 WLR 9 (at § 81); and
• whether Kenyon is simply still being applied, fact-specifically, differently in each of the above Isle of Man cases on its merits, or whether English and Manx law on the exhaustion of alternative remedies in judicial review/doleance may be said, in practice, to diverge, is perhaps moot.

At § 48(2), the Court also held that the absence of a Regulation 4(3) time-limit was also raised twice before the Immigration Adjudicator.

Disposal

Acting Deemster Arrowsmith considered (at §§ 51-56) the merits of the doleance claim, albeit without reaching a conclusion thereon.

His judgment emphasises that the Claimant (a litigant in person) elected the wrong procedure and should be held to the consequences of that choice. He held:

“59. The procedural steps taken by the Claimant now, it appears on his argument in error, are nonetheless errors that he must accept the consequences for. Whilst fully engaged in applications before the Immigration Adjudicator, and with knowledge as at 19 September 2025… he initiated the steps reflected in this judgment.

60. … [W]hilst some allowance may appropriately be given to a litigant in-person, the obligations under the 2009 Rules and the operation of the rule of law applies equally to litigants-in-person as to a party represented by an advocate. Recognition, now and belatedly, of an error, and then seeking an entirely different form of relief by way of doleance as against under the statutory immigration appeal regime, was a matter of choice by the Claimant…

63. … [A]t some point in the process either because of his own research or with input from those he sought to take advice from, a potential legal remedy based upon an error he had himself identified no later than 19 September 2025, occurred to the Claimant as an option. I am satisfied that the grounds to bring the Doleance Claim arose on 22 August 2025. The timescale and steps taken thereafter were entirely a matter for the Claimant…

65. … The impact upon the Claimant and his inability either to manage matters himself or to obtain legal advice is wholly unsupported by adequate evidence…

71. … The fact that the interpretation of a rule, regulation or statute might in theory impact upon the approach to others, does not elevate this claim to a matter of wider public importance…

72. …I recognise the potential argument arises in respect of the position of the Claimant’s son, whether that be under Article 8 ECHR or otherwise. However… it is for the Claimant to set out in far greater detail than he has done so as to (a) the wider circumstances of his son and the practical and legal caring realities and (b) the potential impact upon his son. Once more, the Claimant’s position is not adequately explained or evidenced…

74. In my view the Claimant, no doubt a decision which he now regrets, elected to pursue a statutory appeal route through a number of applications over a period of months prior to delivering his Doleance Claim on 18 December 2025…

75. It is significant that during September to December 2025 the Claimant was looking to fully engage in the statutory appeal process having made an initial application to the Immigration Adjudicator, an application to him again and then to the Staff of Government Division. The Claimant’s conduct is in no way consistent with an inability to (i) seek advice (ii) manage matters himself to pursue what he considered to be appropriate remedies and (iii) issue claims and applications.”

Note for practitioners: In Idoniboye-Obu the Court applied the Clarkson principles, as to extending the doleance limitation period in Rule 14.23(1), somewhat strictly. Idoniboye-Obu also appears, in effect, again to distinguish operation of the well-established ‘exhaustion of alternative remedies’ principle, as articulated by Deemster Cain in Kenyon (such distinguishing, in effect, having also occurred in Clarkson itself).

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