SG (Iraq) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Stanley Burnton,Lord Justice Gross,Lord Justice Maurice Kay
Judgment Date13 July 2012
Neutral Citation[2012] EWCA Civ 940
Docket NumberCase Nos: C4/2011/2921, C4/2012/0569 & C4/2011/2270
CourtCourt of Appeal (Civil Division)
Date13 July 2012

[2012] EWCA Civ 940

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Irwin

[2011] EWHC 3818 (Admin)

John Bowers QC (sitting as a Deputy Judge of the High Court)

[2012] EWHC 828 (Admin)

Mr Justice Langstaff

[2011] EWHC 2428 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

Lord Justice Stanley Burnton

and

Lord Justice Gross

Case Nos: C4/2011/2921, C4/2012/0569 & C4/2011/2270

Between:
SG (Iraq)
Appellant
and
Secretary of State for the Home Department
Respondent
OR (Iraq)
Appellant
and
Secretary of State for the Home Department
Respondent

Stephen Knafler QC and Declan O'Callaghan (instructed by Duncan Lewis & Co) for SG

Stephen Knafler QC and Sonali Naik (instructed by Lawrence Lupin) for OR

David Blundell (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department

Hearing dates : 20, 21 June 2012

Lord Justice Stanley Burnton

Introduction

1

The appeal of SG and the application for permission to appeal of OR concern the proper approach of the Court to applications for judicial review of decisions of the Secretary of State to remove or to deport persons who claim that if returned to the country of their nationality they will suffer persecution or treatment contrary to Article 3 of the European Convention on Human Rights, or even be killed, or will suffer serious harm within the meaning of Article 15 (and in particular Article 15(c)) of the Qualification Directive, Council Directive 2004/83/EC, in circumstances in which the Secretary of State has in making her decision relied on a Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber) and permission to appeal to the Court of Appeal has been granted to the individual parties to it.

2

There are before us:

(1) the appeal of SG against the order made by Langstaff J on 3 August 2011 refusing him permission to apply for judicial review of the decision of the Secretary of State to remove him to Iraq and refusing to grant him a stay of his removal;

(2) the application for permission to appeal of OR against the decision made by Irwin J on 20 October 2011 refusing him permission to apply for judicial review of the decision of the Secretary of State to deport him to Iraq, ordered to be heard with the appeal of SG, with the appeal to follow if permission was granted; and

(3) OR's appeal against the order made by John Bowers QC (sitting as a Deputy Judge of the High Court) dated 7 February 2012 refusing him permission to apply for judicial review of the decisions of the Secretary of State to detain him pending his removal to Iraq.

I would grant OR permission to appeal against the decision of Irwin J.

3

These appeals raise a point of importance because other High Court judges have made different orders on applications for permission to apply for judicial review and for a stay in cases in which there is a pending application for permission to appeal or a pending appeal in an applicable Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber).

The proceedings (a): SG

4

SG is a national of Iraq. He arrived in the UK as long ago as 2002 and claimed asylum on the same day. His asylum claim was refused on 24 July 2003. His appeal against that decision was dismissed on 19 November 2003. He did not, however, return to Iraq. Instead, he travelled to Ireland and claimed asylum there on 9 January 2007. He was returned to the UK without consideration of his asylum claim on 3 April 2007. He claimed asylum in the UK again for a second time on his return. His second asylum claim was refused on 31 July 2007. His appeal was dismissed on 23 September 2007. His appeal rights were exhausted on 29 January 2008. He made further representations on 2 October 2009 which were rejected on 16 December 2009.

5

He applied for the Assisted Voluntary Return scheme on 17 August 2010, but declined a monetary settlement offered on 31 August 2010. Removal directions were set for his removal on a charter flight to Iraq on 6 September 2010.

6

The appeal to the Upper Tribunal (Immigration and Asylum Chamber) in the Country Guidance case HM and Others (Article 15)(c) Iraq CG [2010] UKUT 331 (IAC) was heard between 8 and 10 June 2010. Shortly before the hearing, the appellants in that case ceased to be legally represented. Having carefully considered the difficult situation in which it found itself, the Tribunal decided to proceed with the appeal, notwithstanding that the appellants were unrepresented and there was no one to present their case or to challenge the evidence of the Secretary of State.

7

On 6 September 2010 Collins J granted an injunction preventing SG's removal following the issue of the present proceedings.

8

On 20 September 2010 the Upper Tribunal promulgated its Country Guidance determination in HM. In essence, the Tribunal decided that Iraqi nationals could generally be safely returned to Iraq, and that the evidence relating to UK returns of failed asylum seekers to Iraq did not demonstrate that the returns process would involve serious harm.

9

On 8 October 2010 Lindblom J refused on the papers to grant SG permission to apply for judicial review of the Secretary of State's decision to remove him to Iraq and her refusal of his further human rights representations. SG's representatives made further submissions on his behalf, based on a medical report from Dr Sarkar dated 7 October 2010. Although Lindblom J had ordered that renewal was to be no bar to removal, a further injunction was granted on 26 October 2010 by Mr Graham Wood QC, sitting as a Deputy High Court Judge. On 28 October 2010, SG was released from detention. On 17 January 2011 the Secretary of State refused to recognise the further representations as a fresh claim within the meaning of paragraph 353 of the Immigration Rules.

10

On 15 April 2011 Pill LJ granted permission to appeal against the determination of the Upper Tribunal in HM. His reasons were as follows:

"The AIT (sic) was put in a difficult position by developments shortly before the hearing, particularly having resolved that the case should be a country guidance case. Careful consideration was plainly given at each stage to the procedure to be followed. The merits were also carefully considered. I have also considered the helpful written submissions on behalf of the Secretary of State. I am sufficiently concerned about the procedural issues raised, especially in a case which was to become a country guidance case, to grant permission to appeal. They merit consideration by this court. Rulings may have an impact on the merits and article 15(c) may be argued."

11

Shortly before his renewed oral permission hearing, SG served Amended Grounds of Claim. His new grounds challenged his removal on three grounds, namely that removal to Baghdad would breach his rights under Article 3 and Article 5 of the ECHR, that the Secretary of State's consideration of the further representations in the decision letter of 17 January 2011 was flawed and that removal would breach Article 15(c) of the Qualification Directive. He sought a stay of removal until the conclusion of the judicial review claim.

12

Langstaff J refused both the stay and permission to claim judicial review on 3 August 2011: [2011] EWHC 2428 (Admin). He concluded that, on the basis of the determination of the Upper Tribunal in HM, SG had no prospect of succeeding in his challenge to the decision of the Secretary of State. The question arose whether, in the light of the fact that an appeal against the determination in HM was pending, the Court should grant permission or a stay. Other judges, in other cases, had done so. Langstaff decided otherwise. He said:

"19 I have to resolve this, as it seems to me, as a matter of principle. I have to apply the law, and that means the law as it currently stands. On the law as it stands, HM, country guidance, is to be followed. That provides that I should treat the conditions on return to Iraq as not being such as to expose a claimant to a real risk of inhuman or degrading treatment or worse.…if HM is and represents true guidance, it would not, on its own, as it seems to me, be a sufficient reason to restrain removal or to think that it would be arguable in this case that an immigration judge might come to a different conclusion on a fresh claim and that the Secretary of State should so much have appreciated that that her decision, anticipating the decision of an immigration judge, would be wrong on judicial review grounds.

20 Accordingly, I would not give permission as the law currently stands. Should I give a stay? It is trite that, if every time an appeal was to go from one court to another, all cases raising similar points were to be stayed, the system of justice would be bunged up. This does not make sense. The general rule is that a stay should not be given on that basis: there would have to some special and unique feature, some exceptional reason for granting it.

21 I realise that, in taking this approach, I differ from an approach which has plainly been taken in response to the particular arguments in their cases, whatever they may be, by the judges to whom I referred, and I infer by some others. But it seems to me right in principle to take that approach. As Mr Blundell says, the fact that the concerns in HM are procedural and therefore indirectly attack the basis for the decision does not make any exception to the general rule which would be that no stay should normally be granted where a case was directly attacked as wrong in principle or decided...

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