B v Secretary of State for the Home Department

LORD JUSTICE NEUBERGER: This is an application for permission to appeal where Laws LJ refused permission, for reasons we have been given in writing. The decision of Carnwath LJ in U v Secretary of State for the Home Department on 29 March 2006 was not before Laws LJ. Miss Louise Hooper, who appears for the applicant, Miss B, has now drawn my attention to that decision, which as it happens I also had had in mind.

It seems to me that if permission was given in that case it would, at any rate on the face of it, be quite wrong to refuse permission in this case. On the face of it, at any rate, it would seem to me that this case is if anything stronger than that of the applicant in U. That is best measured by what Miss Hooper has been able to submit, and I think rightly to submit. She says that, if in U the appeal succeeds, the appeal would look very promising indeed in this case (I cannot put it higher than that without the Secretary of State having the opportunity to make submissions), and that, if the appeal fails in U, this appeal would nonetheless not be without prospect of success, depending on the way in which the decision of this court in U is expressed. In this case the family life arguments are, it seems to me at any rate, stronger than in U, although there may be special factors in U which I am not immediately aware of which make it a stronger case that this. I am confident that it would be a miscarriage of justice to refuse permission in this case.

I do not think this case should be heard with U. The number of appeals heard together needs to be kept to a minimum, for cost and time reasons. At any rate, as Miss Hooper points out, it would not be convenient, bearing in mind that U is to be heard within the next three weeks.

However, Miss Hooper suggests that for two reasons it might be sensible to amend the notice of appeal, first because on reflection, as she very fairly and sensibly says, it could have been better drafted (that is true of the great majority of notices of appeal that one has seen and no doubt drafted), and also because she may inevitably want to consider how she puts it in light of what this court says in U. In those circumstances I think I should give her permission to amend the notice of appeal, but as I indicated to her, I do not think it is right for me to give her a general right to amend it as she sees fit, because that would be depriving the permission process of any force in this case. So, what I have suggested is that within two weeks of the decision of this court in U, she writes to me either indicating that she does not want to change the notice of appeal or indicating that she does and saying how she wishes to amend it. I do not anticipate any difficulty, from what she says and my agreeing to the amendments she proposes, but I think she ought to have leave for it from me. The communication should be through the Court of Appeal office, so that they are informed about what is happening.

So, on that basis I propose to give permission to appeal.