Morakile Kosi (Applicant/Claimant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 18 July 2016 |
| Neutral Citation | [2016] EWCA Civ 961 |
| Docket Number | C4/2015/2113(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2016 |
[2016] EWCA Civ 961
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(PHILIPPA WHIPPLE QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Simon
C4/2015/2113(B)
Mr Daniel Sills (instructed by Messrs Lawrence Lupin Solicitors) appeared on behalf of the Applicant
Mr Matthew Donmall (instructed by GLD) appeared on behalf of the Respondent
This is an application to reopen an application for permission to appeal from the order of Phillipa Whipple QC (as she then was) sitting as a Deputy High Court Judge of the Administration Court. On 19th June 2015 she refused permission to bring judicial review proceedings challenging the Secretary of State's decision to remove the applicant from the jurisdiction, describing it as "totally without merit". On 20th November 2015 I refused the application for permission to appeal that order out of time with detailed reasons. I too characterised the claim as "totally without merit". That was a final determination of an appeal and the consequence was that the applicant could not orally renew his application for permission to appeal the 19th June order unless he could bring himself within CPR Part 52.17, the so-called Taylor v Lawrence jurisdiction: see Taylor v Lawrence [2003] QB 528. That jurisdiction permits the reopening of a final appeal if three criteria are satisfied:
(a) it is necessary to reopen the appeal in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and.
(c) there is no other alternative effective remedy.
It is unnecessary to set out the history of the litigation in detail since it is well-known to both parties. Importantly for present purposes having failed with the present claim, CO/2346/2015 on 28th October 2015, the applicant issued a second judicial review claim reference CO/5225/2015 against the Secretary of State, also seeking interim relief against removal. A judge of the Administrative Court granted that relief and subsequently permission to bring the claims granted. On 11th April 2016 the second judicial review proceedings were concluded by consent with the Secretary of State withdrawing her removal decision of 26th September 2015, agreeing to reconsider her decision (which is presently awaited) and agreeing to pay costs.
Mr Sills submits that the application satisfies the Taylor v Lawrence test. First he submits that the refusal of permission to appeal was made in ignorance of the orders of the High Court in the second judicial review claim. He submits that this was a material error because the claim was essentially the same or at least similar. It was based on an assertion that the Secretary of State had failed to understand the nature of the Family Court's decision. He draws a distinction in his oral argument in the present proceedings. The question is whether the submissions were pending, if so it was unlawful to remove him, whereas in the second set of proceedings the question was a substantive one: whether the representation met the fresh claim criteria.
Secondly, he submits that the argument, that the applicant's removal was unlawful under...
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