Alfonso, R (on the application of) v Secretary Of State For the Home Department

Where the validity of removal directions depends on documents or information held by the Secretary of State, the Court of Appeal may adjourn a renewed permission application to require investigation, disclosure and an explanation. An undertaking to reconsider the matter does not necessarily justify refusal of permission where the respondent’s conduct has been materially unsatisfactory. The court may remain seized of the application to ensure that the relevant statutory issue is properly investigated and to encourage parties to assist the court promptly.

The applicant challenged removal directions made under the Immigration Act 1971. Jackson J refused permission on 7 April 2000. On a renewed application, the Court of Appeal rejected the other grounds but adjourned the issue concerning the statutory validity of the removal directions so that the Secretary of State could be represented.

At the adjourned hearing, the Secretary of State offered to investigate whether the necessary notice or removal direction had been given to the carrier within the relevant two-month period and, if necessary, to set aside the directions and reconsider the matter. The central issue was whether the application should be refused on the undertaking or adjourned so that the court could inspect the documentation and receive an explanation.

1. The application was adjourned for 21 days, with the court remaining seized of the matter. There was no order for costs.

2. The issue concerned the application of Schedule 2, paragraphs 8 and 10 of the Immigration Act 1971. The Secretary of State’s position was that, if the required notice of intention to remove or removal direction had not been given to the carrier within two months, the removal directions were ineffective, but that any defect could be cured by fresh directions under paragraph 10.

3. Lord Justice Pill held that the undertaking did not adequately dispose of the matter in the circumstances. The Secretary of State had failed to act after receiving the court’s letters and transcript, despite the relevant documents being in, or expected to be in, the department’s possession.

4. The court was entitled to require an explanation and to see the documentation before deciding whether the application should be refused. Allowing the matter to pass without that investigation would provide no adequate incentive for parties to assist the court and their clients when comparable points arise.

5. The court noted that further costs might be avoided if a satisfactory explanation were provided, potentially enabling the application to be refused on paper by consent without a further oral hearing.

• High Court of Justice: Jackson J refused permission to apply for judicial review on 7 April 2000.
• Court of Appeal (Civil Division): On renewal, the court rejected the other grounds and adjourned the statutory removal-directions issue. At the present hearing, Pill LJ and Tuckey LJ adjourned the application for 21 days.