BB & Ors (Algeria) v Secretary of State for the Home Department

Applications for permission to appeal may properly be stayed where a pending higher appeal concerns overlapping issues and may materially affect the grounds under consideration. A stay is especially appropriate where separating connected and unconnected grounds would cause inconvenience without saving time, or where the higher court’s decision may render other issues moot. The court should await the higher court’s decision before determining the affected applications.

Algerian nationals facing deportation on national-security grounds appealed to the Special Immigration Appeals Commission, contending that removal would breach Article 3 of the European Convention on Human Rights. SIAC dismissed their appeals. Appeals by Y, U and BB were earlier allowed in part by the Court of Appeal and remitted for reconsideration; that decision is reported at [2008] Vol 2 WLR 159. Following a fresh SIAC determination, and further applications by G, W, Z and PP, the applicants sought permission to appeal. The central procedural issue was whether these applications should be determined immediately or stayed pending House of Lords appeals concerning appellate jurisdiction, foreign-state assurances and closed material.

1. Applications stayed. All the applications for permission to appeal were stayed pending the decision of the House of Lords.
2. The pending House of Lords appeals concerned three possible issues: the proper approach of the Court of Appeal on a law-only appeal in an Article 3 case; the treatment of assurances given by a foreign state, including whether monitoring arrangements were required; and the use of closed material, raising Article 6 and common-law questions. It was uncertain whether permission had been granted on the third issue.
3. Many of the grounds before the Court of Appeal were directly connected with the issues before the House of Lords. The first issue could affect a substantial number of the applicants’ contentions, while the assurances issue was plainly within the scope of the pending appeals.
4. Although some grounds appeared unconnected, separating them would be difficult and inconvenient because the same applicants advanced both connected and unconnected points. It would probably produce no saving of time, since affected appeals would have to be postponed in any event.
5. The House of Lords might make a decision on assurances which materially undermined the Secretary of State’s reliance on them and affected the ultimate deportation outcome. If so, other grounds decided meanwhile could become moot. Lord Justice Laws also expressed reservations about granting permission where the current law made a point apparently unarguable, but the order was based on the broader case-management considerations. Lord Justice Waller agreed.

• Court of Appeal (Civil Division): Stayed all applications for permission to appeal pending the House of Lords decision.
• Court of Appeal (Civil Division): On 30 July 2007, allowed the appeals of Y, U and BB in part and remitted the cases to SIAC. The judgment is reported at [2008] Vol 2 WLR 159.
• Special Immigration Appeals Commission: Dismissed the original appeals. Following the earlier remittal, SIAC issued a fresh determination on 2 November 2007; applications by G, W and Z concerned their earlier determinations, and PP challenged a determination dated 23 November 2007.