MD (Afghanistan) v Secretary of State for the Home Department

A party whose urgent application is refused on the papers should ordinarily renew it orally before a judge of coordinate jurisdiction before approaching the Court of Appeal. The distinction between refusal of interim relief and refusal of permission to seek judicial review must be maintained.

Even if the Court of Appeal has jurisdiction over a paper refusal of permission, it should generally decline to determine that issue before an oral renewal in the Administrative Court. Otherwise, it would act as a court of first instance without a reasoned judgment below and deprive the parties of an appeal from the first substantive judicial decision.

The appellant challenged the Secretary of State’s refusal to treat late representations and medical evidence as a fresh asylum claim. On the scheduled removal date, Sales J refused interim relief and permission to apply for judicial review on the papers. The appellant obtained a temporary stay from Carnwath LJ and sought permission to appeal.

The parties settled before the Court of Appeal hearing, so the court did not determine the substantive immigration claim. It nevertheless addressed the proper procedure where the Administrative Court has refused both urgent interim relief and permission for judicial review on the papers.

1. The proceedings had been settled. The court therefore did not decide the substantive merits or give general guidance on late fresh-claim material. It observed that the Secretary of State and the courts may scrutinise last-minute material critically, particularly where no good reason for delay is given or relevant documents have not been supplied.

2. The court assumed, without deciding the construction of section 16(1) of the Senior Courts Act 1981, that a paper order refusing permission for judicial review was an order from which the Court of Appeal had jurisdiction to hear an appeal. The important question was how that jurisdiction should be exercised. The contrary submission would imply that the prohibition on appeal in the Civil Procedure Rules was ultra vires and that defendants or interested parties could appeal against grants of permission.

3. A refusal of interim relief and a refusal of permission for judicial review are distinct decisions. Interim relief may be refused without determining permission, while interim relief may sometimes be appropriate before permission has been granted.

4. It is generally inappropriate for the Court of Appeal to hear both an appeal from a refusal of interim relief and an appeal from a paper refusal of permission. Doing so would require an appellate court to act at first instance without a reasoned judgment below. It would also deprive the parties of an appeal from the first substantive judicial decision.

5. As a general rule of civil procedure, a party whose application has been refused on the papers without oral argument may renew it orally before a judge of coordinate jurisdiction. An urgent paper refusal of interim relief in the Administrative Court should therefore be renewed before a High Court judge, including the out-of-hours duty judge where necessary. Resort to the Court of Appeal should ordinarily follow only if that oral renewal fails.

6. An application to the Court of Appeal should expressly seek permission to appeal from the refusal of interim relief and interim relief pending that appeal or, if earlier, determination of the renewed permission application. The claimant should undertake to make the renewal application, provide a draft order and allow the defendant to seek variation or discharge. The appellant should not have appealed directly from Sales J’s paper refusal of permission.

• Court of Appeal (Civil Division): After the parties settled, the court did not determine the substantive merits. It gave procedural guidance concerning paper refusals of interim relief and permission for judicial review: [2012] EWCA Civ 194.

• Court of Appeal, single judge: Carnwath LJ granted a temporary stay of removal and later adjourned the permission application for consideration by the full court.

• Administrative Court: Sales J refused interim relief and permission to apply for judicial review on the papers, and ordered that renewal of the permission application should not prevent removal.