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

JurisdictionEngland & Wales
JudgeLord Justice Stanley Burnton
Judgment Date28 February 2012
Neutral Citation[2012] EWCA Civ 194
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2011/2795
Date28 February 2012
MD (Afghanistan)
Secretary of State for the Home Department

[2012] EWCA Civ 194


Lord Justice Hooper

Lord Justice Lloyd


Lord Justice Stanley Burnton

Case No: C4/2011/2795





Mr Justice Sales

Royal Courts of Justice

Strand, London, WC2A 2LL

Hugh Southey QC and Alexis Slatter (instructed by Wilson Solicitors LLP) for the Appellant

Vikram Sachdeva (instructed by the Treasury Solicitors) for the Respondent

Hearing dates: 1 st February 2012

Lord Justice Stanley Burnton



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.

These proceedings


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.

The procedural issue before the Court of Appeal


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...

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