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

An applicant refused permission by the Upper Tribunal to seek judicial review must first apply to that tribunal for permission to appeal. An application to the Court of Appeal may be made only after the Upper Tribunal has refused permission to appeal.

The Court of Appeal cannot, at the permission-to-appeal stage, grant permission to seek judicial review of an Upper Tribunal decision. It nevertheless has inherent jurisdiction to stay removal where this is necessary to prevent the prospective appeal from being rendered pointless. Pending procedural reform, the court should be very ready to grant such a stay, subject to determination on the merits and the Secretary of State’s right to seek its discharge.

The appellant, an Algerian national facing removal, made a fresh asylum or leave claim and sought judicial review of his proposed removal. The judicial review application was transferred from the High Court to the Upper Tribunal, which refused permission on 19 April 2012.

The appellant applied directly to the Court of Appeal for permission to appeal and for a stay of removal. Sullivan LJ granted and subsequently continued a stay. The full court considered whether an unsuccessful Upper Tribunal applicant must first seek permission to appeal from that tribunal, whether the Court of Appeal could itself grant permission to seek judicial review at the permission-to-appeal stage, and whether it could preserve a prospective appeal by staying removal in the meantime.

1. The stay was continued. The Court of Appeal had inherent jurisdiction to stay removal until it determined the application for permission to appeal. The merits of that permission application remained to be decided separately.

2. A refusal by the Upper Tribunal of permission to seek judicial review is a “decision” for the purposes of section 13 of the Tribunals, Courts and Enforcement Act 2007. Under section 13(5), an applicant may apply to the Court of Appeal only after the Upper Tribunal has refused permission to appeal. Rule 44(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008 ordinarily prevents the permission-to-appeal application being made to the Upper Tribunal until written reasons have been sent. The resulting delay was inconvenient but followed from the legislation and rules as they stood.

3. CPR 52.15(3), which permits the Court of Appeal to grant permission to seek judicial review instead of permission to appeal, applies only where the refusal was by the High Court. It does not extend to refusals by the Upper Tribunal. Section 16(8) of the 2007 Act permits the Court of Appeal to grant judicial review permission only after it has reversed the Upper Tribunal’s refusal on an appeal. Whether a single Lord Justice could grant permission to appeal, constitute the appeal court, allow the appeal and then grant judicial review permission was left undecided.

4. Applying YD (Turkey) v Secretary of State for the Home Department [2006] EWCA Civ 52, the court possessed inherent jurisdiction to protect its prospective proceedings from being set at naught. Removal before the statutory permission process could be completed might render the right to apply to the Court of Appeal pointless.

5. Until the procedural framework was amended, applications for a stay had to be decided on their merits, but the Court of Appeal should be very ready to grant them. A stay protected the court’s jurisdiction, and an erroneous refusal was generally capable of causing greater harm than an erroneous grant. The Secretary of State remained entitled to apply for discharge.

6. The court could not invite applications at a time when statute or statutory rules precluded them. The power to cure some procedural irregularities did not permit intentional disregard of those requirements. Longmore and Sullivan LJJ agreed with the Master of the Rolls.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1050, continued the stay of removal until determination of the application for permission to appeal. It held that permission first had to be sought from the Upper Tribunal and that the Court of Appeal could not grant permission to seek judicial review at the permission-to-appeal stage.

2. Upper Tribunal (Immigration and Asylum Chamber): On 19 April 2012, refused permission to apply for judicial review. No citation is stated.

3. High Court: Granted interim stays and transferred the judicial review application to the Upper Tribunal. No citation is stated.