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

This judgment arises out of a hearing in this court following an application for permission to appeal against a refusal by the Immigration and Asylum Chamber of the Upper Tribunal to grant permission to the applicant to apply for judicial review (‘JR’). The argument at the hearing addressed two questions of principle concerning the Court of Appeal’s powers and jurisdiction in relation to projected appeals against the refusal of the Upper Tribunal to grant permission to seek JR.

The first question is whether an applicant who has been refused permission by the Upper Tribunal to seek JR can or should seek permission to appeal from the Upper Tribunal or from the Court of Appeal immediately after the Upper Tribunal has refused his application. The second question is whether, on an application to the Court of Appeal for permission to appeal, the court can grant permission to seek JR (as provided for in CPR 52.15 for cases coming from the Administrative Court), or whether it must first grant permission to appeal, and then entertain and allow the appeal, before granting permission to seek JR.

Once these two questions of principle have been addressed, the practical consequences need to be considered.

The applicant, an Algerian national, made a claim for asylum which was refused, and he was then served with removal directions by the respondent, the Secretary of State for the Home Department, in January 2011. He was refused permission to seek JR of the Secretary of State’s decision to give the removal directions, and his removal was set to take place on 8 November 2011. On 5 November 2011, the applicant submitted a fresh claim for asylum or permission to remain ahead of his imminent removal. On 7 November 2011, he again applied for permission to seek JR, on the basis that his removal would be unlawful as he had not yet received a response to his fresh claim. On the same day, His Honour Judge Bidder QC, sitting as a High Court Judge, granted a stay of execution of the removal directions.

On 22 November 2011, the applicant's fresh claim was rejected by the Secretary of State. However, on 9 January 2012, Hickinbottom J granted the applicant a stay against his removal, and the JR application of 7 November 2011 (‘the JR application’) was transferred to the Upper Tribunal. On 19 April 2012, the JR application came before the Upper Tribunal who refused permission to apply for judicial review. On 26 April 2012, the applicant applied to the Court of Appeal for permission to appeal against this decision, and also for a stay of execution against the removal order.

On 27 April 2012, having considered the papers, Sullivan LJ granted a stay of removal and, on 1 May 2012, he directed that the parties should make written submissions on the jurisdiction of this court in respect of fresh claim JRs which have been transferred to the Upper Tribunal from the Administrative Court. By a further order dated 12 June 2012, Sullivan LJ continued the stay and adjourned the application for leave to appeal to an oral hearing, on notice to the Secretary of State, so that the full Court could consider the jurisdiction issues at an oral hearing, with a view to the merits of the particular application for permission to appeal being thereafter considered by him on the papers.

JR applications used to be dealt with solely in the Administrative Court, part of the Queen’s Bench Division of the High Court, which still hears most JR applications. However, pursuant to section 15 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal now has power, in certain circumstances, to entertain JR applications, and section 31A(2A) of the Senior Courts Act 1981 enables the High Court to transfer such JR applications to the Upper Tribunal.

In order to understand the issues summarised in paras 2 and 3 above, it is necessary to set out (i) certain of the rules relating to appeals to the Court of Appeal, (ii) some of the provisions of the 2007 Act, and (iii) two of the Upper Tribunal rules.

CPR 52 is concerned with appeals. Part I, which includes CPR 52.3, is concerned with ‘General Rules About Appeals’. CPR 52.3 (1) provides that an ‘appellant requires permission to appeal’ save in certain irrelevant circumstances, and such leave must be sought, according to CPR 52.3(2), from the ‘lower court’ which made the decision sought to be appealed (save where the appeal is a second appeal) or from ‘the appeal court’, which for present purposes is the Court of Appeal. An application for such permission to this court is considered by a single member of the Court of Appeal (‘a single LJ’) on the papers; if permission is granted, the appeal can proceed; if permission is refused, the appellant can make a renewed application for permission to appeal at an oral hearing, unless the appeal is designated by the single LJ as ‘totally without merit’, in which case the single LJ’s decision to refuse permission to appeal is final – see CPR 52.3(3) to (5).

Part II of CPR 52 contains ‘Special Provisions Applying to the Court of Appeal’. It includes CPR 52.15 which applies to JR appeals. CPR 52.15(1) and (2) provide that, where ‘permission to apply for [JR] has been refused at a hearing in the High Court the person seeking permission may apply to the Court of Appeal for permission to appeal … within 7 days of the [refusal].’ CPR 52.15(3) states that on ‘an application under paragraph (1), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for [JR]’, in which case, by CPR 52.15(4), the ‘case will [normally] proceed in the High Court’.

There is a Practice Direction, PD52, which accompanies CPR 52. Para 17.4A of PD52 states that, ‘[w]here the appellant wishes to appeal against the Administrative Appeals Chamber of the Upper Tribunal, the appellant’s notice must be filed within 42 days of the date on which the Upper Tribunal’s decision on permission to appeal to the Court of Appeal is given’. Under para 21.7(3) of PD52, a notice of appeal from a decision of the Immigration and Asylum Chamber of the Upper Tribunal under section 13 of the 2007 Act must be filed with the Court of Appeal ‘within 14 days after the appellant is served with written notice of the decision of the Tribunal to grant or refuse permission to appeal’.

Section 13 of the 2007 Act is headed ‘Right to appeal to Court of Appeal etc’. Subsection (1) gives a right of appeal, subject to the provisions of the section, ‘on a point of law arising from a decision made by the Upper Tribunal’. Such an appeal ‘may be exercised only with permission’ (subsection (3)), which may be granted by the Upper Tribunal or by the Court of Appeal – subsection (4). By section 13(5), an application to the Court of Appeal ‘may be made … only if permission … has been refused by the Upper Tribunal’. Section 14 of the 2007 Act deals with the powers of the Court of Appeal on such an appeal.

Section 15 of the 2007 is concerned with the ‘Upper Tribunal’s “judicial review” jurisdiction’, which can be exercised where ‘certain conditions’ as set out in section 18 are met, or where section 19(3) and (4) so authorise – see section 15(2). Where the Upper Tribunal grants JR, it has the same effect as if the High Court had granted it, and, in considering whether to grant JR, the Upper Tribunal must apply the same principles as the High Court – section 15(3) to (5).

Section 16(2) of the 2007 Act provides that an application for JR under section 15 ‘may be made only if permission … to make it has been obtained from the [Upper T]ribunal’. Section 16(8) provides that where (a) the Upper Tribunal refuses to grant permission for an application for JR to be made, (b) ‘the applicant appeals against that refusal’, and (c) ‘the Court of Appeal grants such permission’, the Court of Appeal may then go on to decide whether to grant the JR application itself.

The Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698 (‘the UT Rules’) govern the procedure of the Upper Tribunal. Part 4 of the UT Rules are concerned with ‘Judicial review proceedings in the Upper Tribunal’. Rule 28 requires an applicant for JR to ‘make a written application to the Upper Tribunal’ for permission.

Rule 40(1) of the UT Rules entitles the Upper Tribunal to ‘give a decision orally’. However, subject to an irrelevant exception, Rule 40(2) states that the Upper Tribunal ‘must provide to each party as soon as reasonably practicable after making a [final] decision’, (a) ‘a decision notice stating the Tribunal’s decision’, and (b) notification of the right to appeal.

Rule 44(1) requires a ‘person seeking permission to appeal’ to ‘make a written application to the Upper Tribunal for permission to appeal’. Save in certain specified cases (which are not in point here), Rule 44(4) provides that any such application ‘must be sent or delivered to the Upper Tribunal so that it is received within 1 month after … the Upper Tribunal sent to the person making the application … written reasons for the decision’.

At any rate on the face of it, the effect of the PD52, the 2007 Act and the UT Rules is both clear and prescriptive in relation to the seeking of the Court Appeal’s permission to appeal against a refusal by the Upper Tribunal to grant permission to apply for JR. First, it is necessary to seek the permission of the Upper Tribunal to appeal to the Court of Appeal before an application for permission to appeal can be made to the Court of Appeal – see section 13(5) of the 2007 Act, as mentioned in para 12 above. Secondly, it is not possible to seek permission from the Upper Tribunal to appeal the refusal until the Tribunal has given its written reasons for refusing permission to apply for JR – see Rule 44(4) cited in para 17 above. Thirdly, such written reasons will, at least often, be provided some time after the refusal of the Upper Tribunal to grant permission to seek JR has been made and communicated – see Rule 40(1) and (2), as explained in para 16 above.

If this conclusion is correct, it is obviously inconvenient. An applicant can be in no-man’s land for some time, namely at least from the date his application to seek JR is orally rejected by the Upper Tribunal under Rule 40(1), until he receives the written reasons for that rejection. Even then, the applicant would still have to apply in writing to the Upper Tribunal for permission to appeal to the Court of Appeal, and, only once that application was rejected could he apply to the Court of Appeal for permission to appeal. The position is quite different in the Administrative Court, where it is open to an applicant to apply for permission to appeal orally or in writing as soon as his application to seek JR is refused, and indeed such an applicant can apply for permission to appeal direct to the Court of Appeal – see CPR 52.3(2) in para 9 above.

It has been argued that this conclusion in relation to the Upper Tribunal could be avoided by treating sections 13 and 14 of the 2007 Act as inapplicable to appeals against JR decisions, which should be treated as dealt with by a separate code, namely under sections 15 and 16 of the 2007 Act. This would effectively involve treating a refusal by the Upper Tribunal of permission to seek JR as not being a ‘decision’.

Attractive though the consequences of that argument are, I would reject it. As a matter of ordinary language, a refusal to seek JR is a ‘decision’ within sections 13 and 14 of the 2007 Act. Further, if those two sections do not apply to such a refusal, it is not clear where the jurisdiction to entertain an appeal against a refusal to seek JR is bestowed on the Court of Appeal. It is true that section 16(8) appears to assume that there is such jurisdiction, but it certainly does not appear to confer jurisdiction. Further, if sections 13 and 14 do not apply to decisions falling within sections 15 and 16, there would appear to be no provision for appealing the grant or refusal by the Upper Tribunal of JR and ancillary relief in a case where permission to seek JR has been granted (as there is no equivalent to section 16(8), which appears to assume that there is a right of appeal, in such a case).

No other way in which the prima facie conclusion described in para 18 above can be called into question or challenged has been advanced, and in my view that conclusion is correct, at least on the basis of the provisions of the 2007 Act and the UT Rules as they currently stand.

Where the Administrative Court refuses permission to apply for JR, and the applicant applies to the Court of Appeal for permission to appeal against that refusal, the Court of Appeal does not have to go through the cumbersome process of granting permission to appeal, hearing and allowing the appeal, and then sending the application back to the Administrative Court to reconsider whether to grant JR. CPR 52.13(3) entitles the Court of Appeal, even at the permission to appeal stage, to grant permission to seek JR and remit the JR application to the Administrative Court for determination on the merits– see para 10 above. However, it is clear beyond doubt that that provision only applies to appeals from the High Court.

No such procedure appears to exist in relation to applications for permission to appeal against the refusal of the Upper Tribunal to permit an applicant to seek JR. Section 16(8) of the 2007 Act is concerned with a different matter, namely the Court of Appeal’s ability to grant JR after it has reversed the Upper Tribunal’s decision to refuse the application to seek JR. Sections 15(3) to (5) of the 2007 Act, referred to in para 13 above, if anything, support the view that CPR 52.13(3) does not apply to applications for permission to appeal from the Upper Tribunal, as they emphasise that applications for JR in the Upper Tribunal are not the same as such applications in the High Court, and, while they state the circumstances in which the Upper Tribunal’s powers should mirror those of the High Court, they do not extend to CPR 52.13(3).

It may be that this apparent problem can be avoided by the single LJ who is considering the application for permission to appeal, (i) granting permission to appeal, and then (ii) constituting himself as the court hearing the appeal, which he then grants and then also (iii) grants permission to seek JR. Step (i) is orthodox, and step (iii) is allowed by section 16(8) of the 2007 Act (see para 14 above). Step (ii) seems surprising, but the Court of Appeal can constitute a single LJ, and, while at first sight, it seems absurd to say that this court can allow an appeal without a hearing and without notifying either side, it must be remembered that the appeal is against a refusal of an ex parte application, so the respondent can be said to have no locus, and the applicant, having been granted all that he could hope for, would have no cause for complaint. I think this procedure, while unorthodox, may be proper, but, having heard only very limited argument on this point, I would not like to decide it.

The first point to be considered is the jurisdiction of the Court of Appeal to grant relief to an applicant for JR, who has been refused permission to apply for JR by the Upper Tribunal, during the period between that refusal and the refusal (or, at least in theory, the grant) by the Upper Tribunal of permission to appeal to the Court of Appeal. As explained above, it appears that this could be a significant period of time, whose length will normally mainly depend on the delay between the Upper Tribunal’s refusal of permission to apply for JR and the provision of its written reasons, but it will also depend on the time during which the applicant prepares and sends a written application for permission to appeal to the Court of Appeal and the time during which that application is considered and dealt with by the Upper Tribunal.

The concern expressed on behalf of the applicant in this case, which reflects a general problem for a person who is seeking to challenge, by way of JR, an executive decision to remove him, is that the Secretary of State may remove him during that period, unless the Court of Appeal grants a stay, or an injunction, restraining the Secretary of State from doing so. But, given that the Court of Appeal appears to have no locus until the Upper Tribunal has refused (or granted) the applicant permission to appeal, can it have jurisdiction to grant such a stay or injunction?

In my judgment, the answer to that question is ‘yes’. The reason for that answer is to be found in the judgment of Brooke LJ, with whom Moore-Bick and Wilson LJJ agreed, in YD (Turkey) v Secretary of State for the Home Department [2006] EWCA Civ 52, [2006] 1 WLR 1646. The effect of that decision was that the Court of Appeal has ‘an inherent jurisdiction to protect its proceedings from being set at naught’ – see at [2006] 1 WLR 1646, para 24. In that case, the court accepted that it could grant a stay of a person’s removal in order to protect his right to appeal to the Court of Appeal against the refusal of his application to what was then the Asylum and Immigration Tribunal, even though he was out of time in bringing his appeal. (In fact, because the court considered that time should not be extended for making his appeal, it refused a stay, but it clearly concluded that it had jurisdiction to grant a stay for the reasons set out at [2006] 1 WLR 1646, paras 14-24).

The facts of this case appear to me to be a fortiori those in YD [2006] 1 WLR 1646. As in YD [2006] 1 WLR 1646, if there is no stay, then (subject to any undertaking the Secretary of State may give) there would be nothing to prevent the applicant being removed. As in YD [2006] 1 WLR 1646, if the applicant is removed it would render pointless (or ‘set at naught’) the right he has to apply for permission to appeal to this court. However, unlike in YD [2006] 1 WLR 1646, the applicant is even now not out of time for applying for permission to appeal (indeed the problem is that time for applying to the Court of Appeal has not even begun to run).

Accordingly, this court has jurisdiction to grant a person in the applicant’s position, namely someone whose application to seek JR against a removal order has been rejected by the Upper Tribunal, a stay against removal until his application for permission to appeal has been considered by the Court of Appeal.

While this conclusion is sensible from an applicant’s point of view, it could lead to the Court of Appeal being swamped with applications for a stay: every time an applicant who is seeking to challenge a removal order is refused permission to apply for JR by the Upper Tribunal, he would be well advised to apply for a stay from the Court of Appeal, so long as (i) he wishes to maintain the possibility of an appeal and (ii) there is any risk of his removal being effected in the meantime.

This could mean that the Court of Appeal would have to consider his case on at least two, and quite possibly five, different occasions – (i) when he applies for a stay of his removal, (ii) when the Secretary of State applies to discharge the stay, (iii) when he applies for permission to appeal on the papers, (iv) when he renews his application for permission to appeal, and (v) when his appeal is heard. Occasions (i) and (iii) are almost inevitable, and occasion (iv) is likely in many cases.

The notion that occasions (i) and (ii) cannot be conflated is little short of absurd, and it was suggested in argument that, despite the effect of the UT Rules and the 2007 Act, the Court of Appeal should be able to consider an application for permission to appeal against the Upper Tribunal’s refusal to grant permission to seek JR, as soon as that refusal has been given. This would involve the Court of Appeal intentionally infringing the clear effect of the provisions considered in para 18 above.

It is true that, where a procedural provision is infringed, it is often open to the court to disregard the infringement and to treat as valid every step taken thereafter – see the analysis in R v Secretary of State for the Home Department ex p Jeyeanthan [2000] 1 WLR 354, 358E-362F. However, that cannot conceivably justify a court (whose most fundamental role is to uphold the law) approving, let alone recommending, that parties make applications at a time when they are precluded by statute, or even by rules contained in statutory instruments (unless the rules are unlawful), and stating that the court will then grant such applications.

We were also referred in this connection to the remarkable decision of this court in Farley v Child Support Agency [2005] EWCA Civ 869. All I would say about that decision is that I find it very difficult, indeed impossible, to think of any circumstances where it would be followed, other than the extraordinary circumstances to which the decision gave rise.

It appears to me that a short term ‘least bad’ modus vivendi is required while a more permanent solution is found to this problem. The more permanent solution, which I hope will be implemented quickly, is for the Rule-makers and, conceivably, Parliament. While it is not for the court to dictate what changes should be made, I believe that all that needs to be done is to amend the UT Rules, so that, at least in the types of case where a stay pending appeal may be sought from the Court of Appeal, an applicant can apply for permission to appeal to the Upper Tribunal as soon as his application is refused. If that small amendment were made, then, in a case where the Upper Tribunal refused permission to appeal, the application for a stay could be combined with an application for permission to appeal. There would, as I see it, be no need to amend any primary legislation.

In order to deal with the other problem which the instant case has identified, namely that discussed in paras 23 and 24 above, I consider that (subject to the point made in para 25 above) it would also be desirable if CPR 52.15(3) was amended so as to apply to appeals from the Upper Tribunal as well as to appeals from the Administrative Court. That would enable the Court of Appeal, on an application for permission to appeal against a refusal by the Upper Tribunal to permit the applicant to seek JR, not merely to grant permission to appeal (and, where appropriate, a stay), but to grant permission to the applicant to seek JR.

Having said that, until the amendments to the UT Rules along the lines suggested in para 36 above are made, it is necessary to address the problem of a large number of applications to the Court of Appeal for a stay, as explained in paras 31 to 33 above. While any such application has to be dealt with on its merits, it seems to me that this Court should be very ready to grant such applications. I reach this conclusion for the following reasons.

First, in order to avoid what may turn out to be a great deal of judicial time on such stay applications, there has, if it is possible, to be a default position, or presumption. Secondly, given that the need for a stay application lies with those responsible for UT Rules 40 and 44 and/or for sections 13 to 16 of the 2007 Act, which are emanations of the Government (in the widest sense), and the remedy lies with the Government, it would be unfair on an applicant if it was hard to obtain a stay. Thirdly, the purpose of the stay is to protect the court’s jurisdiction. Fourthly, the damage to the public interest (represented by the Secretary of State) is, at least in the majority of cases, likely to be less if a stay is wrongly granted and the applicant is not removed when he would otherwise have been, than the damage to the applicant if a stay is wrongly refused, and he is removed before he can successfully appeal the Upper Tribunal’s refusal to permit him to seek JR. Fifthly, it will always be open to the Secretary of State to apply to discharge any stay, where it is appropriate. Sixthly, in this case, the Secretary of State has, very properly, accepted that a stay should be the default position in the current legislative framework, and, in particular, that a stay is appropriate until this judgment is handed down and may well be appropriate until this court has decided whether to grant the applicant permission to appeal.

In the event, I would continue the stay granted by Sullivan LJ on 1 May and extended by him on 12 June 2012 (as described in para 6 above), as he had jurisdiction to grant the stay, and it should be further continued until it is decided whether the applicant’s application for permission to appeal should be granted. I would also hold that, even if the Lord Justice considering the application for permission to appeal wished to do so, he or she could not grant the applicant permission to seek JR of the decision to remove him: that would have to be decided on the appeal.

The parties have sensibly agreed that the costs of this hearing should await the outcome of the applicant’s application for permission to appeal.

I agree.

I also agree