Madan & Anor v Secretary of State for the Home Department

A Country Guidance determination has special status because it is produced by a specialist tribunal following review of the available country material. A court should tread carefully before finding such guidance unreliable merely because of one or two later reports.

An application for judicial review challenging removal must be made promptly when the deportation decision is notified. It should not be deferred until removal arrangements are fixed. Urgent applicants must disclose previous immigration applications and adverse decisions, identify a specific error of law and explain any delay. The Court of Appeal cannot entertain ancillary injunctive relief unless permission to appeal has been sought, subject to an undertaking to issue that application at the first opportunity in a case of real urgency.

Two Afghan nationals challenged deportation orders and sought injunctions preventing removal pending judicial review. Mitting J refused the injunctions and permission to appeal. A single Lord Justice stayed removal until the full court could consider the applications.

The Secretary of State then undertook to suspend removal while expedited judicial review proceedings were pursued. The Court of Appeal made no order on the applications. The material before it was insufficient to determine whether a recent expert report displaced the relevant Country Guidance determination.

The court nevertheless addressed the special status of Country Guidance and gave prospective guidance governing urgent immigration judicial review and applications to the Court of Appeal.

1. No order was made on the applications. The court accepted the Secretary of State's undertaking to suspend removal until the expedited judicial review proceedings were discharged, together with the applicants' solicitors' undertaking to pursue those proceedings with all despatch. The merits could not properly be determined on the available material.

2. Country Guidance determinations have special status. They are produced by a specialist tribunal following what should be a review of all available material, with judicial experience in assessing country conditions. Failure to attend properly to such guidance may constitute an error of law, as recognised in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982. An Administrative Court judge should therefore tread carefully before finding Country Guidance unreliable on the strength of one or two later reports and should be shown subsequent tribunal decisions considering that guidance.

3. Applications under CPR PD 54.18 challenging removal must be brought promptly when a deportation decision is intimated. Applicants must not wait until removal arrangements are fixed. The required detailed statement must identify all previous immigration applications and explain how the current case differs.

4. On an application without notice, legal representatives must disclose matters adverse to the applicant, particularly previous adverse decisions and relevant Country Guidance. They must also take a full note of the judge's reasons and submit it for approval.

5. An application to the Court of Appeal is most unlikely to succeed unless it identifies a specific error of law by the Administrative Court judge. The Court of Appeal has no jurisdiction to grant ancillary relief against removal unless permission to appeal has been sought. In genuine urgency outside office hours, relief may be sought on an undertaking to issue the permission application and pay the fee at the first opportunity.

6. The Treasury Solicitor should receive prompt notice of an intended injunction application. The appellate court must receive the papers placed before the Administrative Court, the note of reasons, a succinct statement of alleged legal error and an explanation of any delay.

7. Unjustified serial applications intended to postpone an earlier immigration decision may amount to professional misconduct. Although immigration courts are generally reluctant to visit advisers' faults upon their clients, professional advisers remain exposed to sanctions where they impede the efficient work of the courts.

• Court of Appeal (Civil Division): Made no order on the applications after accepting undertakings suspending removal and requiring the applicants to pursue expedited judicial review proceedings. The court issued prospective procedural guidance in [2007] EWCA Civ 770.
• Single Lord Justice: Stayed the deportation orders until the full court could consider the permission applications.
• High Court, Queen's Bench Division: Mitting J refused injunctions preventing removal pending judicial review and refused permission to appeal.