YD (Turkey) v Secretary of State for Home Department

This application for an extension of time for appealing from a determination of the Immigration Appeal Tribunal (“IAT”), and for permission to appeal, if an extension of time is granted, was listed for hearing before a three-judge division of the court because it raises issues of practice of general application. For this reason, this judgment is released from the normal restrictions on the citation of judgments of this kind.

The facts of the case are relatively straightforward. The appellant is a 35 year- old Turkish Kurd. He arrived in this country on 5^th November 1999 and claimed asylum at the port of entry. On 12^th February 2001 the Secretary of State refused his application and refused him permission to remain in this country. He appealed, and an adjudicator’s decision in his favour was later set aside by the IAT. On 13^th January 2004 a new adjudicator allowed his appeal, but on 28^th January 2005 the IAT allowed an appeal by the Secretary of State against that decision. It appears that the chairman delivered the Tribunal’s determination orally at the hearing on 5^th November 2004, but it then took over two and a half months for a written version of it to be available in an approved form.

The IAT’s determination was deemed to have been served on the appellant on 1^st February 2005. He did not, however, seek permission to appeal to this court from the new Asylum and Immigration Tribunal (“AIT”) until 18^th November 2005. After it had told him that it had no jurisdiction to consider an “out of time” application, he filed a notice of appeal at the Civil Appeals Office. By this time he had been taken into administrative detention and removal directions had been set. On 29^th November I made an order staying those directions until after his application for an extension of time and for permission to appeal had been determined.

We are primarily concerned with the question of an extension of time and the merits of the application for permission to appeal. However, it will be convenient to determine first whether the court has any power to grant a stay in these circumstances, and if so, by what procedural mechanism.

This was an appeal against an immigration decision (see s 82(1) and (2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”)). Section 78 of the 2002 Act provides that where a person’s appeal under s 82(1) is pending he may not be removed or required to leave this country in accordance with a provision of the Immigration Acts. For this purpose the word “pending” has the meaning given by s 104 of the Act (see s 78(1) and (2)). Section 104 provides, so far as is material, that

“104(1) An appeal under section 82(1) is pending during the period –

(a)

beginning when it is instituted, and

(b)

ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

(2)

An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while -...

(d)

an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination...”

In the present case we are concerned with an application made out of time for permission to appeal under s 103B; it is unnecessary to go into the detail of the transitional arrangements which produce this result. In what follows I will usually refer to the IAT for convenience of treatment, although since April 2005 the AIT has been the relevant tribunal.

It is well known that other elements of this statutory scheme for “out of time” appeals to this court from determinations of the IAT have given rise to difficulties because Parliament gave the IAT no jurisdiction to entertain an application for permission to appeal to this court which was made later than 10 days after the notice of decision was received, and this court could not itself grant permission to appeal unless the IAT “refused” permission. The practical problems to which the statutory language gave rise were resolved by this court in Ozdemir v SSHD [2003] EWCA Civ 167: see also, more recently, Yacoubou v SSHD [2005] EWCA Civ 1051, a case in which the Home Office supported the decision in Ozdemir. In short, it is now settled that if an application for permission to appeal to this court is not filed with the IAT during the prescribed 10-day period, this court will nevertheless have jurisdiction to entertain an “out of time” application so long as the appellant has first applied to the IAT and been turned away on the grounds that it no longer has any jurisdiction to grant relief.

In Ozdemir it was decided (at para 41) that in these circumstances the 14-day period for filing the appellant’s notice at the Civil Appeals Office should run from the date of the IAT’s decision which is under challenge. In Yacoubou (at para 10) I said:

“10.

In any event, if the application for permission to appeal is not made in time, every day that passes from the time that the AIT is without jurisdiction is likely to weaken the chances of this court being willing to grant an extension of time. Parliament has made clear its wish that applications for permission to appeal to this court should be made promptly. This court will do nothing to thwart the wish of Parliament. Of course there may be those exceptional cases where it would be a manifest injustice, on account of the particular facts, if the court would not be willing to entertain an appeal out of time. But those are likely to be exceptional cases.”

In the present case, the time for filing an application at the IAT for permission to appeal to this court expired on 15^th February 2005 (for the computation of time see the Immigration and Asylum Appeals (Procedure) Rules 2003, rules 28(1)(b), 54(5)(a) and 56). The appeal under s 82(1) of the 2002 Act was then “finally determined” within the meaning of s 104 of the Act and there was no statutory bar to his removal thereafter. The theoretical possibility that he could make an “out of time” application for permission to appeal to this court could not in itself prevent his appeal being treated as having been finally determined (see s 104(2)(d)).

The phrase “other than an application out of time with permission” is an obscure one. There can be no doubt that if this court does grant permission to appeal out of time, an appeal under s 103B will then be pending, and s 78 will prohibit the appellant’s removal until after the appeal is determined. It appears to me that the phrase probably refers to an unusual situation in which this court has extended time for filing the appellant’s notice as a discrete event and is therefore treated as having given permission for the application for permission to appeal to be made. The effect of s 104(2)(d) will then be that even if an extension of time is granted, no appeal will be pending for the purposes of s 78 until such time (if at all) as permission to appeal is in due course granted.

The question then arises whether this court has any power to grant a stay on removal between the time when the “out of time” appellant’s notice is filed and the time when the application for permission to appeal is determined, and if so what is the source of that power. In deciding that question it is necessary to refer first to the recent decision of this court in GH v SSHD [2005] EWCA Civ 1182. In that case an adjudicator had dismissed an Iraqi Kurd’s appeal on both Refugee Convention and human rights grounds. No removal directions had been given, and the question arose whether the IAT had jurisdiction on the appeal to take into account what might happen to the appellant while he was travelling to a “safe haven” in his own country after his removal from the United Kingdom.

This court held that because no removal directions had been set the question was entirely academic. The “immigration decision” under challenge did not embrace removal directions, and there is now no longer any express provision for an appeal to the AIT against removal directions (compare s 65(1) of the Immigration and Asylum Act 1999 with s 82(1) of the 2002 Act). It was therefore held that if and when removal directions were given, any challenge to those directions would have to be by way of judicial review (see paras 48, 52 and 53 of the judgment). The Administrative Court would then have power under CPR 54.10(2) to stay the implementation of removal directions pending its decision on the judicial review application.

This would constitute an orderly way of proceeding in a case where there is no longer any room for an appeal to this court against the determination of the IAT/AIT. But it was common ground at the hearing that it would be unsatisfactory for the appellant to have to institute entirely new judicial review proceedings in the Administrative Court at the same time as this court is seized of an application for an extension of time for appealing in connection with a challenge to the original immigration decision itself. Mr Coppel, for the Secretary of State, accepted that it would be better if it were this court which had the power to grant any necessary stay, and invited us to explore the possibility of a solution along the lines suggested by Mr de Mello (see para 15 below). He said that if an alternative solution was possible his client did not see the sense of requiring an appellant to initiate judicial review proceedings at the same time as he was seeking permission to appeal from this court out of time.

We have already seen how there can be no automatic statutory stay in a situation of this kind (see paras 8 and 9 above). Unless and until this court grants permission to appeal, no appeal will be pending for the purposes of s 78 (for which see para 5 above). In a challenge to a public law decision by judicial review, CPR 54.10(2) confers on the Administrative Court a power to grant a stay “of proceedings to which the claim relates”, and the Court of Appeal on an appeal in a judicial review case has all the powers of the Administrative Court (CPR 52.10(1)). This, however, is not a judicial review appeal. As a quite separate point, in the context of an appeal against an immigration decision the phrase “the proceedings to which the claim relates” would not embrace removal directions from the time when the right to appeal against such directions was abolished.

CPR 52.7 is the only rule in CPR Part 52 which expressly contemplates the possibility of a stay pending an appeal to this court. It provides:

“52.7

Unless –

(a)

the appeal court or the lower court orders otherwise; or

(b)

the appeal is from the Immigration Appeal Tribunal,

an appeal shall not operate as a stay of any order or decision of the lower court.”

In Pharis v SSHD [2004] EWCA 654 at [13] I explained that CPR 52.7 reflected the statutory bar on removal pending appeal that was now contained in s 78 of the 2002 Act, so that no power to grant a stay can be forthcoming from that quarter in the present context. And since the IAT/AIT possesses no power to grant a stay of removal directions, because that matter is entirely dealt with by the automatic stay provisions in s 78, CPR 52.10(1) confers on the Court of Appeal no power which the IAT/AIT did not possess.

Mr de Mello, who appeared for the appellant, suggested that the lacuna in the court’s powers might be filled by recourse to the inherent jurisdiction of the court to protect its process from abuse. The way the argument ran was that if the Court of Appeal were unable to make an order restraining the Secretary of State from removing the appellant while it was deliberating whether to grant an extension of time for appealing and permission to appeal – and delays often occur at this stage because the papers are not all available – then the Secretary of State might remove the appellant and thereby set the court’s process at naught. We were referred to the judgment of Lord Woolf MR in Ebert v Venvil [2000] Ch 484 at pp 496F–497A, a case where it was decided that the High Court had an inherent jurisdiction to prevent the initiation of civil proceedings which were likely to constitute an abuse of process by requiring the leave of the court to be obtained first.

In Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528 a five-judge division of this court held (at para 54) that the Court of Appeal possessed a residual jurisdiction to avoid real injustice in exceptional circumstances through the exercise of a power to reopen proceedings which it had already heard and determined. It made it clear that before it would be willing to exercise this jurisdiction it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy.

More recently, in Bhamjee v Forsdick (Practice Note) [2003] EWCA Civ 1113, [2004] 1 WLR 88 this court made it clear (at para 15) that it had power to take appropriate action whenever it saw that its functions as a court of justice were being abused: a brief summary of the authorities on which it relied for this proposition is set out in paras 11-14 of that judgment.

All these cases, however, were ultimately concerned with the court’s powers to stay proceedings (or to strike them out) if they were perceived to be an abuse of its process, or to reopen proceedings if not to do so would represent an affront to justice and there was no other available remedy. The present situation is different because what is being sought is not a stay of an order or determination of the IAT. It is a stay of removal directions which the Secretary of State would now be lawfully empowered to make, and there is already an adequate (if clumsy) alternative remedy in the form of an application to the High Court to restrain the implementation of those directions pending the hearing of the application.

I have referred to the High Court because apart from its inherent jurisdiction to protect its function as a court of justice the Court of Appeal derives its powers in a context like this from CPR 52.10(1) which gives it all the powers of the lower court in relation to an appeal. Section 37(1) of the Supreme Court Act 1981 and s 38(1) of the County Courts Act 1984 give both the High Court and a county court the power to grant an injunction in all cases in which it appears to the court to be just and convenient to do so. The IAT, on the other hand, has no equivalent power. The recent case of Schmidt v Wong [2005] EWCA Civ 1506 brought to light two situations in which the High Court had power to make an order in support of county court proceedings which a judge in a county court had no power to make (viz a freezing order and an order, request or commission to examine witnesses abroad), and there would appear to be conceptually no good reason why the High Court could not grant an injunction in support of Court of Appeal proceedings if it appeared just and convenient to do so.

It would, however, be very inconvenient to do so, and totally contrary to the philosophy of the Civil Procedure Rules and the overriding objective. It would involve the “out of time” applicant not only filing a notice of appeal at the Court of Appeal but also at the same time filing a notice at the High Court seeking an injunction staying his removal pending the determination of the Court of Appeal. It would then involve a judge of the High Court determining whether there was sufficient merit in the application to grant the injunction. This would involve, among other things, assessing the merits of the application as if he was a judge of the Court of Appeal, an inconvenience which could only be effectively remedied if a judge of the Court of Appeal (who would be familiar with the jurisprudence of the Court of Appeal in relation to the grant of a stay pending an appeal in the ordinary run of cases) were to sit as a judge of the High Court for this purpose under section 9(1) of the Supreme Court Act. And this would show very clearly how inconvenient – and expensive and time-consuming – this procedure would be.

There appear to me to be three ways of resolving the dilemma:

Concern has been expressed in some quarters to the effect that the court should be slow to enlarge the boundaries of its inherent jurisdiction and that it should now leave it to Parliament or the Rules Committee to introduce any innovative changes: see, for instance, the article by M.S. Dockray, The Inherent Jurisdiction to Regulate Civil Proceedings (1997) 113 LQR 120. In my judgment, the enactment of the Civil Procedure Act 1997 and the introduction of the Civil Procedure Rules 1998 have changed the landscape. Recent history has shown the beneficent effect of the judges initiating innovative ways of regulating procedure, followed swiftly by the Rules Committee codifying or extending the new procedures the judges have introduced. CPR 52.17 (which codifies Taylor v Lawrence) and CPR 3.11 and the Practice Direction supplementing that rule (which codify and extend Bhamjee v Forsdick) are good examples of desirable changes which would never have been made, or not made so swiftly, if the judges had not been ready to take the lead.

Although one would expect the Home Office to respect any request made by the judiciary, the first option would be bound to lead to misunderstandings on the part of those who do not appreciate the constitutional relationship between the judiciary and the executive, which in any event was altered by M v The Home Office [1994] 1 AC 377 (see R v Home Secretary ex p Muboyayi [1992] 1 QB 244, 253 C-E for an example of the changed climate). An additional problem arises from the fact that these late applications are often made when removal procedures are quite well advanced.

The second option would be the conventional solution, but it would be very inconvenient and needlessly expensive. In all the circumstances I am persuaded by Mr de Mello’s wish that we should explore the third option – and we gave the Treasury Solicitor prior notice that we wished to consider this problem – that it is appropriate for the court to declare that in these circumstances it has an inherent jurisdiction to protect its proceedings from being set at naught and to exercise that jurisdiction in the present case by requiring the Home Secretary, as a party to the proceedings, to refrain from removing the appellant from the jurisdiction while it considers the application before it. This will not be a stay in the ordinary sense of staying further action within the proceedings (as, for instance, with a stay on the execution of a judgment), but an order in effect preserving the status quo (namely the presence of the appellant within the jurisdiction) until the court makes a determination on the application.

It is one thing to say that a power to direct the suspension of removal directions exists on an “out of time” application. It is quite another to say that the court will be ready to exercise this power in any but an exceptional case, and whether it will do so will largely depend on the merits of the substantive application for permission to appeal out of time. I have already observed how in Yacoubou I said that “every day that passes from the time that the AIT is without jurisdiction is likely to weaken the chance of this court being willing to grant an extension of time”. In connection with appeals more generally (as opposed to appeals in a context in which Parliament has prescribed a strict, non-extendable timetable so far as the IAT/AIT’s involvement is concerned) I said in Smith v Brough [2005] EWCA Civ 261 at [54]-[55] that in any case where an extension of time for appealing in excess of say two months was sought, the court would bear in mind the following three principles in determining where the interests of the administration of justice truly lay:

(1)

That it is a fundamental principle of our common law that the outcome of litigation should be final;

(2)

That the law exceptionally allows appeals out of time;

(3)

That this, and the principle that a judgment may subsequently be impugned for fraud, are the exception to a general rule of high public importance and are reserved for rare and limited cases where the facts justifying the exception can be strictly proved.

These statements of principle echo the principle identified in Taylor v Lawrence (see para 16 above), namely that the court will be ready to assist in an exceptional case if it is satisfied that a significant injustice has probably occurred.

I turn therefore to the facts of the case. The central issue was whether the appellant would be at serious risk in the hands of the Turkish security forces if he were returned to Turkey because of the publicity surrounding a photograph which showed him participating in a pro-PKK demonstration in London four years ago. This photograph appeared prominently on the front page of a newspaper of interest to the Kurdish community in Turkey which was published in Germany and circulated in other EU countries. The second adjudicator had allowed his appeal on these grounds. He was influenced in this respect by the expert evidence given by a specialist in Middle East affairs who had a particular interest in the Kurds.

The Secretary of State’s notice of appeal to the IAT contained three grounds of appeal. The first was that the adjudicator had given undue weight to the expert’s evidence. In this respect reliance was placed on an earlier decision by a different panel of the IAT which had found itself unable to rely on that witness’s views as being objectively based, and a starred determination of the IAT which provided guidance on the proper approach to expert evidence. The second ground of appeal was that even if the appellant’s name was known to the Turkish authorities as a result of the picture in the paper, the adjudicator had given no reasons why this would lead to them having an interest in him at the date of the hearing. The third ground was that the adjudicator had failed to give proper and full consideration to the objective evidence placed before her. The notice of appeal referred to the newspaper as showing a picture of the appellant, and it contained no suggestion of any challenge to the adjudicator’s finding that it did.

The appellant up to this point had been represented by Messrs Tyrer Roxburgh. The solicitor in charge of his case had been Mr Julian Bild. Shortly before the Secretary of State was granted permission to appeal the second time, Mr Bild left the firm in order to take up a post with the Immigration Advisory Service (“IAS”). The firm closed its immigration department at the same time. Mr Bild told the appellant to contact him at the IAS if the Secretary of State were again granted permission to appeal. Unhappily, although the appellant phoned the number he had been given on a number of occasions, he did not succeed in contacting Mr Bild, and in due course he instructed a new firm of solicitors to represent him at the second IAT appeal hearing. Mr Bild has told the court that it is notoriously difficult to access the IAS by telephone, particularly if one is not yet a client of the IAS. This is a matter the IAS’s management has been long addressing.

The appellant therefore attended the IAT hearing with his new solicitor. He was not asked any questions about the accuracy of the photograph. He says that his new solicitor had asked him if he possessed an original copy of the newspaper and he explained that he had passed it to Mr Bild. His solicitor told him that it had not come with the papers from Mr Bild’s former firm. Very recently inquiries have been made of the AIT to inquire whether it is lodged on one of their files.

It appears that the IAT based its decision to allow the appeal solely on an issue that was not raised on the grounds of appeal, and was not argued by either side. They studied the photocopy of the newspaper article and concluded that it was not clear that the person in the photograph could be identified as the appellant, or that he was wearing a PKK T-shirt, or that he was carrying a banner as the adjudicator had described. The adjudicator had therefore been wrong to conclude that the publication of the article put the appellant at any risk at all.

On 28^th January 2005 the IAT sent a copy of the determination to the appellant’s solicitors with a letter enclosing an application form for an application for permission to appeal to the Court of Appeal. The letter referred to the time limit for such an appeal, and the form referred to a deadline for appealing.

The appellant says that his solicitor at the second IAT hearing had told him that there was nothing that could be done unless he could obtain further evidence of his prospective problems with the Turkish security services. He received in due course a letter from his solicitors enclosing the IAT’s determination and telling him he had no grounds for appealing. He could not himself understand the basis of the decision: only that they had found the adjudicator made a mistake.

He then tried to contact Mr Bild at the IAS more than once, but was unable to contact him: on one occasion he was put “on hold” for a long time but did not manage to speak to anyone. He also gave his mobile telephone number to a secretary at Mr Bild’s former firm, asking that Mr Bild be given his number. This was equally unproductive. He sought advice from friends at the Kurdish Community Centre and from a Kurdish solicitor who was based there, but he was told that there was nothing further he could do. He received similar advice from a solicitor in Turnpike Lane who had kept his file for a week in order to study it. He then became very demoralised and depressed. Finally, he obtained Mr Bild’s contact details with the help of a library assistant at Colnbrook. As soon as Mr Bild was instructed he moved very rapidly. His activities included an unsuccessful request to the Home Office on 18^th November that removal directions be stayed, an application to the AIT which received the predictable reply on 22^nd November that it possessed no jurisdiction, and the filing of the appellant’s notice with this court on 29^th November.

Mr Bild had acted for him before both adjudicators and before the IAT on the first occasion. He says that the photograph of the appellant was in colour and of good definition both in the newspaper and in the Internet version of the paper. None of the representatives of the Secretary of State, nor the two adjudicators nor the IAT had ever suggested that the appellant’s face and the slogan on his T-shirt were not readily recognisable, and he says it would have been pointless to run the appellant’s case on the basis of a photograph in which he could not be recognised. The IAT on the second occasion had therefore made a serious error when it made a finding of fact to that effect, not on the basis of the original evidence that was in fact before the adjudicator but on the basis of a photocopy of the newspaper in which his face and the emblem on his T-shirt were not so distinct.

It seems to me that this was a case in which permission to appeal to this court would have been granted if the application had been made in time. But this fact alone cannot be of conclusive effect in deciding whether to grant a nine-month extension of time for appealing. For this purpose it is necessary to turn to CPR 3.9 (see Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095).

As to CPR 3.9(a), I have already explained in para 25 above why the interests of the administration of justice lean heavily against allowing such a long extension of time in any but the most exceptional of cases. As to (b), the application for “relief” is nine months late. As to (c), the failure to comply was not intentional, and as to (d) I have explained the explanation for the failure, to which I will return below. (e) and (g) appear to be irrelevant and as to (f), the failure to comply with the rule was “caused” by the appellant himself and not his legal representative. As to (h), the failure to comply has had the effect on the Home Office that it has been put to expense in arranging for his detention and removal in the understandable belief that the appeal proceedings are at an end. So far as the appellant is concerned, it would have enabled him to stay in this country for a further nine months should his application now be turned down. As to (i), the granting of relief would have a very beneficial effect for the appellant, but on the other hand it would, in my judgment, have a comparably ill effect for the Home Office because it would severely impair their efforts to achieve swift and efficient machinery for removing asylum-seekers once their appeals appear to have been finally determined.

The most powerful points that can be made in the appellant’s favour are that his former solicitor was the only person who could have advised him that he had a real prospect of success on an appeal from the IAT to this court, on account of his unique knowledge about the original newspaper (and its Internet version) which only he (and the appellant) possessed, and the appellant has provided a plausible reason why he was unable to contact him for such a long time.

Notwithstanding this, the appellant would have to have a strong case that he was likely to finish up with ultimate success in his appeal against the original immigration decision, if permitted to continue to pursue it, in order to counteract the powerful considerations weighing in the Home Office’s favour. I do not consider that such a case has been made out. He starts with the disadvantage that the adjudicator repeatedly disbelieved him on important aspects of his case. She found that he had invented a story that he had been assisting the PKK in the mountains for a number of years from 1989 onwards when he was in fact seeking asylum in Germany. She found that he had lied to her about destroying the false passport on which he said he had returned from Germany. She did not believe his story that he was involved with the PKK or that he was supporting HADEP when in Turkey. She did not find it plausible that the authorities in Turkey would continue to have any interest in his whereabouts ten years after he had been required to do national service. She found his decision to send a photograph to his family wearing a PKK T-shirt to be implausible. She did not believe anything he had said about his political activities either in Germany or Turkey.

All that was left of his case was the evidence of the newspaper and its effect if he were to be returned to Turkey. The adjudicator accepted what the expert said about the risk that this posed. But the Secretary of State has on reasonable grounds complained that the expert’s opinion contains a good deal of speculation, as opposed to hard evidence of the practice of the Turkish authorities: see paras 1(ii) and (iii) of his grounds of appeal to the IAT. It appears from para 15 of their determination that the IAT had a good deal of sympathy with these grounds, even if they based their conclusions on what they had to say about the copy photograph.

If we were to extend the time for appealing and grant permission to appeal the most that this court could do in the circumstances would be to remit the case to the AIT for it to reconsider the matter four and a half years after the photograph appeared. In all the circumstances I do not consider that the chances of a successful outcome in the AIT are nearly strong enough to justify this court extending the time for appealing and I would therefore dismiss this application.

Finally I would summarise the conclusions set out in this judgment in these terms:

(1)

The Court of Appeal possesses an inherent jurisdiction to order the Secretary of State to refrain from removing an appellant between the time when an out of time application for permission to appeal (and for an extension of time) is filed at the Civil Appeals Office and the time when the application for permission to appeal is determined;

(2)

When this jurisdiction is exercised, a very important factor will be the court’s assessment of the likelihood that the applications for an extension of time and for permission to appeal will be granted;

(3)

Every day that passes from the time when the AIT is without jurisdiction is likely to weaken the chance of this court being willing to grant an extension of time, and it would be rare for the court to grant an extension of time for two months or more: it will have to be satisfied that a significant injustice has probably occurred;

(4)

The court will only grant such an extension if in all the circumstances (including the considerations set out in CPR 3.9) it is just to do so. The appellant will have to present a strong case that he is likely to achieve ultimate success on his appeal against the original immigration decision for such an exceptional course to be justified.

It would be helpful if the Civil Procedure Rules Committee were to consider this judgment so as to determine the extent to which it would be useful to set out relevant procedure and practice by way of an amendment to the rules or to the practice direction relating to CPR Part 52.

When we were on the point of sending this judgment to the parties in draft, we received, without any prior warning, a written submission from Mr Coppel delivered 17 days after Mr de Mello had filed the submission we had asked him to prepare on notice to Mr Coppel. We had not thought it necessary to set a timetable for the receipt of these later submissions, and in the absence of any observations from the Secretary of State within seven days we proceeded to prepare our judgment. Apparently the response was delayed within the Home Office.

This response favours the institution of concurrent Administrative Court proceedings and Court of Appeal proceedings. No reference at all is made to all the practical problems this will involve (including the problems and expense inherent in requiring the asylum-seeker - or the taxpayer on his behalf - to pay two sets of court fees and to bear the additional legal costs of proceeding concurrently in two different courts), although these problems were canvassed in detail at the hearing. It is simply said:

“There is no injustice to the Appellant. When removal directions have been set, the appropriate course of action is to seek to judicially review (sic) those removal directions and to apply for an injunction pending the determination of that application. The courts have repeatedly accepted that removal directions constitute an administrative decision that is potentially open to be challenged by way of judicial review. The High Court has appropriate processes in place for dealing with such last minute applications.”

With respect, this misses the point. If an appellant has to go to the Administrative Court to seek such an injunction, he is entitled as of right to seek an oral hearing if an injunction is refused on paper. If refused, he is then entitled as of right to seek permission to appeal to the Court of Appeal. If refused on paper, he is entitled as of right to an oral hearing. The alternative, and far more convenient course, as we have said, is that this court, which is seized of the case from the time the notice of appeal is filed, should have power to direct that he is not removed from the jurisdiction during the relatively brief period before it makes its decision whether to grant permission to appeal. In the language of this late submission the direction is being given in a case that has already been filed with the Court of Appeal and the question whether an extension of time and permission to appeal is granted is “imminently” to be determined by the Court of Appeal. And the effect of this judgment is that it is unlikely to exercise this power very often.

It was clearly considerations like this that no doubt prevailed when the Secretary of State decided to respond negatively to a very clear suggestion from the court in Yacoubou that it should revisit the correctness of its earlier decision in Ozdemir. If the court did not interpret the relevant legislation as it did in Ozdemir, it would have been open to appellants in some cases to seek judicial review, for example, of the legal validity of a notification by the IAT of the route of appeal which misled the appellant and was plainly incorrect. The problems inherent in that solution (see para 44 above) were recognised by counsel for the Secretary of State in Yacoubou in just the same way as they were recognised by Mr Coppel in the present hearing.

In this late submission emphasis is made on the proposition, which was fully discussed at the hearing, that “the High Court is the natural repository of the power to grant injunctions where it appears just and convenient to do so” (see Supreme Court Act s 37(1)). So it is, but this court also has an inherent power to prevent its jurisdiction from being set at naught. This is a jurisdiction it enjoys as a superior court of record which can be exercised by making whatever kind of order is deemed necessary and proportionate to meet the circumstances of the case. This will usually take the form of an order that amounts to an injunction, but that consideration is irrelevant to the question whether the power exists.

I would add, for the sake of clarity, that this judgment remains, subject to cosmetic changes in paras 12, 15 and 24, in the form in which it was about to be sent to the parties just before the late submission was received.

I agree.

I also agree.