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

In immigration judicial review proceedings, filing a notice of appeal against refusal of permission to apply for judicial review does not itself stay deportation. Under Civil Procedure Rules rule 52.7, an express order is required, subject to any statutory prohibition on removal pending appeal. A person seeking protection from removal must make an express stay application, which should be placed before a Court of Appeal judge on paper. This practice does not alter cases where legislation prohibits removal while an appeal remains pending.

Ben Pharis sought permission to appeal from an order of Maurice Kay J in the Administrative Court dated 19 June 2003. The judge had dismissed his judicial review challenge to the Secretary of State’s decision to remove him to Nigeria. Pharis claimed to be from Sierra Leone and disputed the Nigerian travel documentation, but the judge held that removal to Nigeria was permitted because there was reason to believe that Nigeria would admit him.

Pharis was deported to Nigeria before the application reached the Court of Appeal, after an administrative failure to act on a request to defer removal. The court therefore considered both the merits of the proposed appeal and whether lodging a notice of appeal automatically stayed deportation.

1. Permission to appeal refused. The proposed appeal did not engage with Maurice Kay J’s conclusion that Nigeria was a country to which there was reason to believe the claimant would be admitted. Under paragraph 4(2)(ii) of the Immigration (Removal Directions) Regulations 2000, that provided an alternative basis for removal even if the claimant was not a Nigerian national.
2. Rule 52.7 of the Civil Procedure Rules provides that an appeal does not operate as a stay of the lower court’s order or decision unless the appeal court or lower court orders otherwise, subject to the stated exception for appeals from the Immigration Appeal Tribunal. The rule reflects the statutory bar in section 78 of the Nationality Immigration and Asylum Act 2002, with section 104 defining when an appeal is pending.
3. The court distinguished cases governed by that statutory protection from freestanding judicial review proceedings such as the present case. Although administrative practice had generally deferred removal after notification of an appeal, that practice created no automatic right to a stay. The court noted the serious abuse caused by unmeritorious immigration and asylum appeals pursued to delay deportation, referring to the discussion in The Queen on the application of Nine Nepalese Asylum Seekers v Immigration Appeal Tribunal [2003] EWCA Civ 1892.
4. With the authority of the Master of the Rolls, the court directed that, in future immigration or asylum cases challenging refusal of permission to apply for judicial review, filing a notice of appeal should not be treated as an automatic stay. An appellant seeking a stay must make an express application, which the Civil Appeals Office must place before a judge for determination on paper. The practice does not affect cases where the statutory ban on deportation pending appeal applies.
5. Had a stay been sought in this case, it would have been refused because the proposed appeal had no merit. The judgment was released for citation as guidance of general application.

• Court of Appeal (Civil Division) refused permission to appeal and issued general guidance on stays of deportation.
• Administrative Court Maurice Kay J dismissed the judicial review application on 19 June 2003, holding that removal to Nigeria was permitted under the admission criterion in the Immigration (Removal Directions) Regulations 2000.