F (Mongolia) v Secretary of State for the Home Department

The Court of Appeal remains bound by one of its decisions unless a later House of Lords decision enunciates a clear principle plainly inconsistent with that decision’s approach to similar subject matter.

A precedent concerning the final statutory review of an immigration permission decision continues to govern a replacement statutory scheme where the relevant structure and safeguards remain materially the same. Marginal procedural differences, including altered time limits or funding arrangements, do not make the earlier principle inapplicable.

Differential treatment does not engage article 14 unless the compared groups are in an analogous position. Authorities prohibiting nationality discrimination within groups sharing the same relevant characteristics do not undermine a decision that the proposed groups are not analogous and that no relevant discrimination exists.

The appellant’s asylum claim was rejected by the Secretary of State and a single judge of the Asylum and Immigration Tribunal. A Senior Immigration Judge refused reconsideration, and Sir Michael Harrison, sitting as a High Court judge, rejected the appellant’s application for statutory reconsideration.

The appellant then sought judicial review of the asylum decisions on grounds already rejected on statutory reconsideration. Collins J refused permission on the papers as manifestly hopeless, and the renewed application before Mr Nicholas Blake QC, sitting as a deputy High Court judge, was dismissed by consent.

The central issue on appeal was whether R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731 remained binding following changes to the statutory review scheme and later House of Lords decisions concerning article 14.

1. Appeal dismissed. The court was bound by R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731. The application for permission to seek judicial review therefore failed at the threshold. Buxton LJ delivered the judgment, with which Lawrence Collins LJ and the Master of the Rolls agreed.

2. The relevant principle in G was that the statutory procedure had to be assessed as a whole. The question was whether it satisfactorily assured protection of the rights of persons entitled to asylum. Judicial review could not be used to challenge an Immigration Appeal Tribunal permission decision on the same grounds already rejected by a High Court judge on final statutory review.

3. The replacement regime under section 103A of the 2002 Act remained materially equivalent for this purpose. An application for reconsideration was first considered by a Senior Immigration Judge and, if refused, could be renewed before a High Court judge. The judge’s written determination remained final. Differences concerning time limits, public funding or the precise approach to permission were marginal and did not make the principle in G inapplicable.

4. Under Young v Bristol Aeroplane Co [1944] 1 KB 718, the Court of Appeal may decline to follow its own decision where it cannot stand with a subsequent House of Lords decision. As explained in Johnson v Havering London Borough Council [2007] 2 WLR 1097, a clear House of Lords principle must be plainly inconsistent with the earlier Court of Appeal approach to similar subject matter.

5. Neither A v Secretary of State for the Home Department [2005] 2 AC 68 nor Clift v Secretary of State for the Home Department [2007] 2 WLR 24 met that test. Those decisions concerned nationality discrimination within limited groups whose members shared relevant characteristics. They did not address whether asylum seekers were analogous to other persons challenging administrative tribunal decisions. Since G found no relevant discrimination between the proposed groups, the question whether discrimination rested on nationality did not arise.

1. Court of Appeal (Civil Division): By [2007] EWCA Civ 769, unanimously dismissed the appeal and held that the application for permission to seek judicial review failed at the threshold.

2. Administrative Court: Collins J rejected permission on the papers as manifestly hopeless. The renewed application was subsequently dismissed by consent before Mr Nicholas Blake QC, sitting as a deputy High Court judge.