Rama, R (on the application of) v Secretary of State for the Home Department

An adjournment pending a possible appeal in a higher court should generally be granted only where (1) the relevant law is uncertain and likely to be clarified, and (2) the awaited decision is likely to determine or substantially affect the case. A unanimous Court of Appeal decision refusing permission to appeal ordinarily removes such legal uncertainty. Public funding and advice from leading counsel do not, without more, establish uncertainty. Where binding authority conclusively rejects the claimant’s legal argument, the Administrative Court should determine the claim rather than defer it.

The claimant, a young man from Kosovo, challenged the Immigration Appeal Tribunal’s refusal of leave to appeal against an adjudicator’s dismissal of his asylum and human-rights claims. His argument concerned the construction of Article 1C(5) of the Geneva Convention and the application to non-statutory refugees of the humanitarian principle described in paragraph 136 of the UNHCR Handbook.

Before the substantive hearing, the case had been adjourned pending the Court of Appeal’s decision in R (Hoxha and B) v An Adjudicator and The IAT [2002] EWCA Civ 1403, which concerned the same legal issue. The claimant sought a further adjournment pending a petition for leave to appeal to the House of Lords. The central issue was whether the law remained sufficiently uncertain to justify that course.

1. The application for judicial review was dismissed. The Court of Appeal’s decision in R (Hoxha and B) v An Adjudicator and The IAT [2002] EWCA Civ 1403 stood against the claimant’s argument and was conclusive for the purpose of deciding this application.

2. Two criteria ordinarily govern an adjournment sought because a higher court may soon decide a relevant appeal: there must be uncertainty about the applicable law which the forthcoming decision is likely to resolve, and the facts must be such that the decision is likely to determine or substantially affect the present case.

3. The first criterion was not met. The Court of Appeal had given a unanimous decision, five judges had rejected the relevant argument, and permission to appeal had been refused. A pending petition for leave, even one supported by public funding and leading counsel’s advice, did not itself demonstrate legal uncertainty.

4. The claimant’s factual circumstances could have justified consideration if the humanitarian principle for which he contended had formed part of English law. The court therefore did not refuse the adjournment on factual grounds.

5. Having considered the wording of Article 1C(5), the judge regarded the decisions of Turner J, Jackson J and the Court of Appeal as correct and the contrary argument as unarguable. Information concerning the practice of other states, including the material discussed in paragraphs 40 to 49 of the Court of Appeal judgment, did not alter that conclusion.

6. Leave to appeal was refused because there was no prospect of success and no other compelling reason. Detailed assessment of the claimant’s publicly funded costs was permitted, and an expedited transcript was directed.

• High Court (Administrative Court): the judicial review claim was dismissed. Leave to appeal was refused.
• Immigration Appeal Tribunal: leave to appeal was refused on 1 November 2001.
• Adjudicator: the claimant’s asylum and Human Rights Convention appeal was dismissed on 20 September 2001.