F (Mongolia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Lawrence Collins,The Master of the Rolls |
| Judgment Date | 25 July 2007 |
| Neutral Citation | [2007] EWCA Civ 769 |
| Docket Number | Case No: C4/2006/2139 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2007 |
[2007] EWCA Civ 769
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR NICHOLAS BLAKE QC
Royal Courts of Justice
Strand, London, WC2A 2LL
the Master of the Rolls
Lord Justice Buxton and
Lord Justice Lawrence Collins
Case No: C4/2006/2139
CO/8385/2006
Mr Michael Fordham QC and Mr Raza Husain (instructed by The Refugee Legal Centre) for the Appellant
Mr Clive Lewis QC and Miss Elisabeth Laing (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Mr Rabinder Singh QC and Mr Duran Seddon made written submissions for the Public Law Project (intervener)
Hearing date: 10 July 2007
Judgement
The purpose of these proceedings
In form, this is an appeal to this court in respect of an application for permission to apply for judicial review that was rejected on the papers as manifestly hopeless by Collins J, and on further application in court was dismissed by consent by Mr Nicholas Blake QC sitting as a Deputy Judge of the High Court. In substance, however, the appellants wish to paint on a broader canvas. In a note to this court the appellants' advocates say:
Purpose. This hearing is so that the Court can express its views, for the benefit of the HL, as to whether R(G) v IAT [2004] EWCA Civ 1731 [2005] 1 WLR 1445 is wrongly decided and should not be followed. The hearing was directed on 5.3.07, the Court having declined both parties' invitation to dismiss the appeal so as to facilitate a direct appeal to the HL.
That was not how the constitution of this court that gave permission to appeal saw the matter. That constitution indicated that there should be pursued the issue of whether R(G) v IAT [hereafter G] continued to bind this court, in the light of changes in the underlying legislation and of subsequent decisions of the House of Lords. That is plainly a quite different question from whether G was wrongly decided.
This judgment therefore only addresses the issue of whether this court is still bound by G. The correctness of the decision in G is not relevant to that enquiry, and in any event is not a matter for this court. That issue is therefore not addressed in the judgment. But so that there should be no misunderstanding, it should be stressed that we fully attended to the elaborate arguments addressed to us both on paper and orally seeking to establish that the decision in G was in any event incorrect. For my part I was entirely unpersuaded by those arguments, but for the reasons indicated it would not be appropriate to set out here the grounds on which I have reached that conclusion.
Why G is said to be no longer binding
The two bases on which it was said that G did not bind us were, first, that the decision as to article 14 discrimination was inconsistent with two subsequent decisions of the House of Lords, A v SSHD [2005] 2 AC 68; and Clift v SSHD [2007] 2 WLR 24. Second, all that G decided was that to apply for judicial review was an abuse of process in the context of the 2002 Act. Because our case is governed by the present statutory review procedure, under the (inserted) section 103A of the 2002 Act, which was said to be significantly different from that considered in G, that case did not bind when applied to the new regime.
I think it fair to say that in oral argument counsel saw the article 14 point as by far the more fruitful field, and devoted most of that argument to that point. He was right not to put stress on the second complaint summarised in §3 above. For that complaint to be valid, it would have to be shown that the differences between the original 2002 Act scheme and the scheme inserted by section 103A were sufficiently great as to render inapplicable or irrelevant not merely the decision in G, but also the principles that this court applied in reaching that decision. That, as I shall demonstrate, cannot be done. But the point was not abandoned, and therefore must be addressed. I accordingly proceed as follows. First, as background to the rest of the argument, I describe the differences between the 2002 and 2004 schemes. Second, I set out the basis of the decision in G in respect of the availability of judicial review, and describe how that applies to the present case. Third, I deal with the separate argument that G is not binding on us in respect of the article 14 claim. I conclude that G is binding in all respects, and therefore that the appeal from Collins J must be dismissed.
The statutory regimes
The regime at the time of the decision in G
Before the enactment of the 2002 Act the appellate structure in respect of decisions of the Secretary of State adverse to an applicant was (1) an appeal to an adjudicator on law and fact; then (2) an appeal to the IAT on law and fact, with the permission of the IAT; then (3) an appeal on a point of law to the Court of Appeal (and hence, potentially, to the House of Lords). The element in that system that prevented applicants from proceeding further without alternative recourse was the need for the permission of the IAT to bring an appeal before that tribunal, and accordingly the practice grew up of seeking to disturb permission decisions that were adverse to applicants by means of applications for Judicial Review of the IAT's refusal of permission: see the account given by this court in §§ 50–52 of R(Sivasubramanian) v Wandsworth County Court [2003] 1 WLR 475.
It was in that context that section 101 of the 2002 Act added to the statutory regime by providing a statutory mechanism for complaining about permission decisions of the IAT. First (not directly relevant to the present point, and as I understand it not complained of in these proceedings) section 101(1) limited appeals from adjudicators to the IAT, which were still only available with the permission of the IAT, to appeals on points of law. Section 101 (2) and (3) then provided that a party aggrieved by a decision of the IAT might apply for a statutory review of that decision. That review was to be conducted by a single judge of the High Court: that is, a judge of the same status as, and drawn from the same judicial corps as, the judge who would hear a Judicial Review application. The review was by reference only to written submissions and the decision was stated to be final, thus excluding appeal to this court.
In G the claimants' application for permission to appeal to the IAT was rejected, and that decision was upheld on statutory review by the High Court judge. The claimants then applied for Judicial Review of that same decision of the IAT, relying on the same grounds as they had advanced in the statutory review application to the High Court judge.
The present regime, as applied in the case of F
The new structure and procedures, introduced by amendments to the 2002 Act, and in particular by section 103A thereof, are comprehensively described in the judgment of this court in DK(Serbia) v SSHD [2006] EWCA Civ 1747, to which the interested reader can be confidently...
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