B v Secretary of State for the Home Department

At the permission stage, the court may take account of a materially comparable appeal which has already been granted permission, particularly where its outcome may affect the prospects of the present appeal. If the present case appears at least as strong, refusing permission may amount to a miscarriage of justice. The court may permit amendment of a notice of appeal so that the grounds can be reconsidered in light of the comparable appeal, but the permission should be controlled rather than left general. Appeals should not ordinarily be conjoined where doing so would create unnecessary cost, delay or inconvenience.

The claimant sought permission to appeal against a decision of the Asylum and Immigration Tribunal. Laws LJ had refused permission, but his decision had not taken account of the Court of Appeal’s decision in U v Secretary of State for the Home Department, given on 29 March 2006. The present application concerned whether that omission affected the permission decision, whether the appeal should be heard with U, and whether the notice of appeal should be amended.

1. Permission granted. The court considered that, if permission had been granted in U v Secretary of State for the Home Department, it would, on the face of the material available, be wrong to refuse permission in the present case. The present case appeared at least as strong, although the court did not determine the ultimate merits without submissions from the Secretary of State.
2. The family-life arguments appeared stronger than those in U, subject to any special factors in that case. The omission of the decision in U from the earlier permission decision therefore made refusal of permission a potential miscarriage of justice.
3. The appeals were not to be heard together. The number of appeals heard together should be kept to a minimum for reasons of cost and time, and joinder would not be convenient because U was due to be heard within three weeks.
4. Permission was given to amend the notice of appeal. The amendment was to be proposed within two weeks after judgment in U, through the Court of Appeal office, and required the court’s approval. A general liberty to amend was refused because it would deprive the permission process of force.

• Court of Appeal (Civil Division) — The present court granted the application for permission to appeal and permitted controlled amendment of the notice of appeal.
• Asylum and Immigration Tribunal — Decision under appeal; case number AIT No. HX/06608/2004.
• Court of Appeal (Civil Division) — Laws LJ had refused permission to appeal, for written reasons.