MD (Afghanistan) v Secretary of State for the Home Department

This is the judgment of the Court addressing issues that have arisen in relation to the procedure in this case, and which are likely to be of general importance.

The appellant is a citizen of Afghanistan. After his arrival in this country, he claimed asylum. He also claimed to be a child, 16 years old. By letter dated 27 April 2006 the Secretary of State rejected his claims. He appealed to the Asylum and Immigration Tribunal, and in a determination dated 20 July 2006 Immigration Judge Oakley rejected his claim that he was under 18 years of age and rejected his claim to asylum, finding his claims to be incredible. The Administrative Court refused reconsideration of the determination, and so his appeal rights were exhausted. However, he failed to report as required.

The claimant subsequently submitted an application for leave to remain under the so-called legacy scheme. It was refused on 14 March 2011. He was later detained and on 18 October 2011 removal directions were set for 31 October.

On 21 October 2011, the claimant’s solicitors submitted representations and a considerable volume of documents, including a medical report, which they contended amounted to a fresh claim under paragraph 353 of the Immigration Rules. By letter dated 29 October 2011 the Secretary of State rejected his claim and gave lengthy reasons for doing so.

On 31 October 2011, i.e., the date set for his removal, the claimant’s solicitors issued a claim for judicial review of the Secretary of State’s refusal to treat his submissions as a fresh claim and for an order prohibiting his removal. He sought interim relief.

The application for interim relief and permission to apply for judicial review was immediately considered by Sales J on the papers. He refused interim relief and permission to apply for judicial review, and ordered that renewal of the application for permission should not operate as a bar to removal.

The claimant then applied to Carnwath LJ, who was then the Court of Appeal judge dealing with urgent applications, for a stay of his removal. Carnwath LJ considered his application on the papers and granted the stay “pending a hearing to determine the application for permission to appeal, on notice to the Secretary of State”. He gave as his reason:

“Although I agree with the judge that this is largely an attempt to boost a case which was disbelieved in 2006 and not appealed, there may be an arguable question as to the Secretary of State’s treatment of the new medical evidence.”

On 10 November 2011, the matter came back before Carnwath LJ on notice. Both the claimant and the Secretary of State were represented. Carnwath LJ adjourned the application for permission to appeal to be listed on notice to the respondent, with appeal to follow immediately if permission was granted. His order did not expressly identify what was the subject of the proposed appeal. In his judgment, Carnwath LJ said:

“5.

The case for the grant of permission is set out very clearly in Mr Slatter’s grounds of appeal and skeleton. In other circumstances, I would accept that this raises at least a realistically arguable case that the tribunal might have taken a different view had it had the new evidence before it. Two matters make me reluctant to grant permission: first, that this material could probably have been available at the original hearing had the then solicitors done their homework better. It is also of considerable concern that it has taken five years for it to emerge, during which time the claimant has had the benefit of being able to live in this country.

6.

The second matter is that even after that period it comes before this court and the Administrative Court less than 24 hours before the planned removal. It clearly makes life extraordinarily difficult for the UKBA if it cannot plan enforced deportations in an orderly way, and for the courts faced with such last-minute applications.

7.

For those reasons I am not prepared to grant permission to appeal at this stage. However it might be a case on which the full court could helpfully give guidance about how this court, and possibly also the Administrative Court, should approach a very urgent case like this where apparently substantial material is put forward at a very late stage, but to delay removal might seem to give an unfair advantage to those who submit it so late, and also encourage similar conduct by others. I should make clear that there is a statement from the solicitors which explains why the material came in so late. That will be a matter for which the court will no doubt wish to consider but I make no further comment on it at this stage.”

We point out that the application made to Carnwath LJ, and possibly as a result the order made by him, did not identify whether the permission to appeal that was being considered related to the Administrative Court’s refusal of interim relief or the Administrative Court’s refusal of permission to apply for judicial review or to both.

Sales J made three orders. Two of them concerned interim relief: he refused to grant interim relief and ordered that renewal of the application for permission to apply for judicial review should not preclude removal. The substantive order he made was the refusal of permission to apply for judicial review.

It was clear from the skeleton arguments filed by both parties for the hearing in this Court that they had assumed that at the hearing directed by Carnwath LJ the Court of Appeal would consider both the refusal of interim relief and the refusal of permission to proceed with the substantive judicial review claim. However, for the Court to consider the second of these matters would have contravened CPR 54.12(3), which provides:

“The claimant may not appeal [a decision refusing permission to proceed with a claim for judicial review] but may request the decision to be reconsidered at a hearing.”

The Court alerted the parties by email before the hearing that there was a question as to the jurisdiction of the Court of Appeal to consider in relation to the refusal of permission to proceed with the claim.

In his helpful written response to this email, Mr Southey QC submitted that the Court of Appeal has jurisdiction to consider a refusal of a stay made without an oral hearing because the High Court has implicitly exercised its powers under CPR 23.8(c) to make a final order without an oral hearing. In relation to the application for permission to appeal the refusal of permission to proceed with the substantive claim for judgment, he brought to our attention section 16(1) of the Senior Courts Act 1981. It provides:

“(1)

Subject as otherwise provided by this or any other Act (and in particular to the provision in section 13(2)(a) of the Administration of Justice Act 1969 excluding appeals to the Court of Appeal in cases where leave to appeal from the High Court directly to the Supreme Court is granted under Part II of that Act), or as provided by any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.”

No relevant order has been made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999. Mr Southey therefore submitted that section 16(1) conferred jurisdiction on the Court of Appeal to hear the application for permission to appeal and if granted the appeal against Sales J’s refusal of permission to apply for judicial review.

By the time of the hearing before us, the parties had agreed the settlement of the proceedings. Because the Court did not consider the substantive merits of the applications, we thought it inappropriate to give the general guidance as to the approach to be followed by the High Court or the Court of Appeal that had been envisaged by Carnwath LJ. Clearly, the Secretary of State is entitled to scrutinise last-minute submissions of what is contended to amount to a fresh claim critically and with a high degree of scepticism, at least where there is no good reason put forward for the delay in their submission, and the same must apply to the courts if judicial review of her decision is sought. Particular care is required, and strong scepticism may well be appropriate, if relevant documents, such as a Tribunal determination, have not been made available. Beyond that, we cannot say.

In relation to the procedural questions that had been raised by the Court, Mr Southey relied on his written submissions, and contended that if the Court of Appeal is to consider an appeal against the refusal of the interim relief, it will normally have to consider whether the claimant has an arguable case, and it would be more efficient and involve a saving of costs for it to consider the application for permission to apply for judicial review at the same time.

Mr Sachdeva, for the Secretary of State, submitted that the claimant should have requested reconsideration of his application for permission to apply for judgment under CPR 54.12(3). The correct order to have been made by Carnwath LJ was an order staying removal pending the determination of that request. Had the claimant followed this procedure, either the High Court would have granted permission, in which case removal would have been deferred pending the judgment on the substantive application for judicial review, or it would have been refused, in which case he could have appealed to the Court of Appeal, which would have had the benefit of a judgment in which his claim had been considered.

Since there has been no argument before us as to the interpretation of section 16(1), we are prepared to assume that it is not restricted to orders that are not liable to be set aside or which may be reviewed by a judge of coordinate jurisdiction to that of the judge who made the order in question. On this basis, an order made on the papers refusing permission to apply for judicial review is an order of the High Court to which section 16(1) applies, notwithstanding that such an order is in a sense provisional, provided the claimant requests reconsideration under Part 54.12(3). On the basis of that assumption, the real question is not whether the Court of Appeal had jurisdiction to consider the appeal against the refusal of permission to apply for judicial review, but whether, and if so how, it should have exercised its jurisdiction.

However, we point out that the implication of Mr Southey’s submission in relation to section 16(1) of the Senior Courts Act 1981 is that CPR Part 54.12(3), in so far as it prohibits an appeal to the Court of Appeal, is ultra vires. It also follows that a defendant to a judicial review claim or an interested party may appeal to the Court of Appeal against an order of the High Court granting permission to apply for judicial review, notwithstanding CPR Part 54.13.

We consider it important to maintain the distinction between a refusal of interim relief and a refusal of permission to apply for judicial review. Interim relief may be refused although the Court has not decided to refuse permission to apply for judicial review, as where no sufficient case of urgency is made out. Conversely, it may be appropriate to grant interim relief even though no decision has been made to grant permission to apply for judicial review.

There are two interrelated reasons why, in our judgment, it is in general inappropriate for the Court of Appeal, in a case such as the present, to hear both an appeal against the refusal by the Administrative Court of interim relief and an appeal against its refusal on the papers of permission to apply for judicial review. The first is that to do so converts the Court of Appeal, which is an appellate court, into a court of first instance. The Court of Appeal would have to determine the appeal without the benefit of any judgment at first instance. CPR Part 52.15(4) makes express provision for the Court of Appeal to act as a court of first instance, but even in such a case there will be a judgment of the Administrative Court on the hearing of the renewed application for permission to apply for judicial review, giving its reasons for its decision.

The second, and perhaps more important, reason is that for the Court of Appeal to act as a court of first instance effectively deprives the parties of any appeal against the first judicial decision on the substance of the case.

It is a general rule of our civil procedure that, in the absence of any order or legislation to the contrary, a party who has applied for an order which has been refused by a judge on the papers, without oral argument, has the right to renew his application orally before a judge of coordinate jurisdiction. Thus, where a party applies in the Administrative Court for urgent interim relief which is refused on the papers, he has the right to renew his application orally to a High Court judge. If the case is one of sufficient urgency, and there is no time to apply in court, the claimant may renew his application to the out-of -hours duty High Court judge, although if that judge is not provided with the relevant papers he may understandably be reluctant to come to a different decision from the judge who had the advantage of the papers. It is only if an oral renewal is unsuccessful that the claimant may consider an application to a judge of the Court of Appeal. If there has been no oral renewal to a High Court judge, the judge of the Court of Appeal may well refuse permission to appeal the paper refusal of interim relief, on the ground that the appropriate procedure has not been followed.

Furthermore, the order sought by the claimant should have been expressly for permission to appeal against the refusal of interim relief, and for interim relief pending the hearing of that appeal, or if earlier pending determination of the claimant’s renewed application for permission to apply for judicial review under CPR Part 52.15(4). The claimant should have offered, and should have been required to give, an undertaking to make that renewed application. Those representing the claimant should have provided a draft order for consideration by the judge, and it should have provided expressly for the defendant to have leave to apply to discharge or to vary the order on notice to the claimant’s solicitors. The substantive hearing in the Court of Appeal of the appeal against the refusal of interim relief would in all probability have become academic, following the decision of the Administrative Court on the renewed application under CPR 54.12(3).

The claimant should not have sought to appeal the refusal of Sales J of permission to apply for judicial review. Given the express provision for the hearing of a renewed application for permission in CPR Part 52.15(4), the application for permission to appeal this part of the order made by Sales J should have been refused on the basis that the appropriate procedure to be followed was to request reconsideration in the Administrative Court under that provision.

The above should be borne in mind by those seeking urgent interim relief from the Court of Appeal in cases such as the present.