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

A pending or intended petition for permission to appeal does not, by itself, justify staying judicial review proceedings where the applicable law has been settled by the Court of Appeal and the claimant accepts that the case is on all fours with that authority. A stay may nevertheless be granted to allow a party to seek permission to appeal against the current decision, provided the application is made within the prescribed time.

The claimant, a Somali national, challenged the defendant’s decision to remove her to Greece under the Dublin Convention. Her case was accepted to be on all fours with R (Nasseri) v Secretary of State for the Home Department. The earlier first-instance decision in that case had been reversed by the Court of Appeal, which had refused permission to appeal but stayed removal pending a proposed petition to the House of Lords.

The claimant’s only remaining basis was that it was unreasonable to refuse a stay pending that petition. The issues were whether the Court of Appeal’s decision governed the claim and whether the intended further appeal justified a stay.

1. Application dismissed. The claimant accepted that her case was on all fours with R (Nasseri) v Secretary of State for the Home Department, as decided by the Court of Appeal in [2008] EWCA Civ 464. The law stated in that decision therefore governed the claim.
2. The mere intention to present a petition to the House of Lords for permission to appeal did not provide a proper basis for staying the proceedings. The fact that the Court of Appeal had stayed matters in Nasseri pending the outcome of its proposed petition did not justify granting an equivalent stay in this case.
3. The judge refused permission to appeal to the Court of Appeal. However, because the claimant stated that she would apply for permission, the court granted a conditional stay to allow that application to be made. The stay would continue until the application was determined, but would lapse if the application was not made within the time prescribed by the Civil Procedure Rules.
4. The claimant was ordered to pay the defendant’s costs of the acknowledgement of service, summarily assessed at £480. The defendant was not awarded the costs of the hearing.