R (on the Application of Nb Algeria) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeThe Master of the Rolls,Lord Justice Longmore,Lord Justice Sullivan
Judgment Date27 July 2012
Neutral Citation[2012] EWCA Civ 1050
Date27 July 2012
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C2/2012/0957

[2012] EWCA Civ 1050

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lord Justice Longmore

and

Lord Justice Sullivan

Case No: C2/2012/0957

Between:
R (On the Application of Nb Algeria)
Appellant
and
Secretary of State for the Home Department
Respondent

Tim Buley (instructed by Fadiga & Co Solicitors) for the Appellant

Gwion Lewis (instructed by Treasury Solicitors) for the Respondent

Hearing date: 18 July 2012

The Master of the Rolls

Introductory

1

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.

2

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.

3

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

The facts

4

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.

5

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.

6

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.

7

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.

8

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 and PD52

9

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).

10

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'.

11

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'.

The 2007 Act

12

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.

13

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).

14

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 Upper Tribunal Rules

15

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.

16

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.

17

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...

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