Rudi, R (on the application of) v Secretary of State for the Home Department

This application for judicial review, in which Mr Henderson now seeks leave to appeal, was heard by Ouseley J in January 2007. It concerns the discriminatory effect of a policy which allows the grant of indefinite leave to remain to families with juvenile dependents but not to lone juveniles. It also, as an ancillary issue, raises the question of discrimination as between young adults and the justification for it. Since Tuckey LJ had this application before him on the papers and refused permission, the case of Al (Serbia) which Tuckey LJ understandably took to conclude the matter, has been the subject of a grant of permission to appeal to the House of Lords. The grant of permission is fairly recent, making it likely that the appeal will be heard in the medium term rather than in the near future.

There is an argument that Al (Serbia) is distinguishable but, like Tuckey LJ, I find that difficult to see. There is now, however, the much more radical possibility that Al (Serbia) will be held to have been wrongly decided. In addition to this, Sir Henry Brooke has very recently granted permission to appeal on sight of the papers in the case of Ibrahimi, which was conjoined with this one. Sir Henry’s reasons include the desirability of this court giving an authoritative ruling on the points in issue in Ibrahimi. In this situation it is clear that, in some form and upon some suitable basis, the present application for permission to appeal ought to succeed.

Discussing it with Mr Henderson, I have concluded that it would not be useful simply to adjourn this application to abide the decision in AL (Serbia), if only because this case potentially raises at least one further issue. Equally, however, it is possible that the decision in Al (Serbia) will be broad enough to make it possible for this court to decide both major issues in the present case on the basis of it. One live possibility is therefore to grant permission to appeal, link this case with Ibrahimi, and direct that both abide the decision of their Lordships in AL. The other is the bolder course of granting permission to appeal and by consent dismissing the appeal, on the ground that it is concluded at present in this court by AL, so that application can be made for permission to appeal to their Lordships’ House. The difficulty with which that confronts Mr Henderson, who is otherwise attracted by this idea, is that if permission to appeal to their Lordships’ house is refused he has lost his case. It is only therefore if this court, upon dismissing the appeal by consent, is prepared to give permission to the House of Lords that this is for Mr Henderson a viable option.

Unusually, this case has made history. It is spelt out in the skeleton argument from paragraph 35 on, which suggests that the Secretary of State may share the appellant’s interest in getting the most authoritative possible resolution of the issues, and may therefore be prepared to support an application, upon dismissal without argument, for permission to appeal to the House of Lords to be granted by this court. It is only in such a situation that I think we would contemplate doing such a thing, and I say ‘we’ because I do not think it is such a decision that a single lord justice should take by himself or herself. What I propose therefore to do, with Mr Henderson’s agreement, is to adjourn this application to the first week of the new term , and to a full court. It will come back on notice, and by that stage we will want a written indication of the Secretary of State’s position. Mr Henderson will be able, in the light of that and of what I have said, to decide in what form to press his application, but I make it clear that it is an application which in my judgment ought to succeed to the extent of the grant of permission to appeal. What remains to be determined is what follows thereafter. I would not expect any attempt to be made to remove this young man from the United Kingdom in the meantime.