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

Where an application for permission to appeal concerns a potentially decisive authority awaiting House of Lords review, and a related case raises further live issues, the Court of Appeal may adjourn the application for consideration by a full court. A single Lord Justice should not alone decide the unusual course of dismissing an appeal by consent while granting permission to appeal to the House of Lords. The respondent’s position should be obtained before that course is considered. The court indicated that permission to appeal ought to succeed in principle, but adjourned the application pending further directions.

The appellant sought permission to appeal from a January 2007 decision of Ouseley J concerning a policy granting indefinite leave to remain to families with juvenile dependants but not to lone juveniles. An ancillary issue concerned discrimination between young adults. Tuckey LJ had refused permission on the papers, treating Al (Serbia) as decisive. Permission to appeal in that authority had subsequently been granted to the House of Lords. Sir Henry Brooke had also granted permission in Ibrahimi, which was conjoined with this case. The issue before Sedley LJ was the appropriate procedural course, including whether to link the cases and await the House of Lords decision or dismiss by consent and seek further permission.

1. Application adjourned. The application was adjourned to the first week of the new term, when it would return before a full court. The court made no final determination of the underlying discrimination issues.
2. Pending authority. Al (Serbia) was potentially decisive of the present case, although an argument for distinguishing it was difficult to sustain. Permission to appeal in Al (Serbia) had been granted to the House of Lords, creating the possibility that it might be held wrongly decided. Its eventual decision might also be broad enough to resolve both major issues in the present case.
3. Appropriate procedural route. The court considered two possibilities: linking this case with Ibrahimi and directing that both await the House of Lords decision; or dismissing the appeal by consent so that permission to appeal to the House of Lords could be sought. The latter course exposed the appellant to losing the case if further permission were refused.
4. Constitution of the court. Sedley LJ considered that the unusual decision to dismiss by consent while granting permission to appeal to the House of Lords should not be taken by a single Lord Justice. The matter should be considered by a full court, with a written indication of the Secretary of State’s position. The court did not expect the appellant to be removed from the United Kingdom before the application returned.

Order: Application adjourned.

1. Court of Appeal (Civil Division): Sedley LJ adjourned the application to be considered by a full court and indicated that permission to appeal ought to succeed to that extent.
2. Court of Appeal (Civil Division): Tuckey LJ had refused permission to appeal on the papers, treating Al (Serbia) as concluding the matter.
3. High Court of Justice, Queen’s Bench Division, Administrative Court: Ouseley J heard the judicial review in January 2007. The judgment does not state the decision’s citation or outcome.