Barrow v Secretary of State for the Home Department

At the permission stage of judicial review, the central question is whether the claim is arguable. The court should not treat that stage as a final determination of the substantive merits. Where the drawn order grants permission only on a specified issue, that order governs the procedural effect of the decision. Oral discussion suggesting that other claims were substantively dismissed cannot displace the order. In an immigration-detention case, the Court of Appeal held that claims concerning unlawful detention and damages were arguable. It therefore granted permission on those issues and remitted them for substantive consideration.

The appellant, a Somali national facing deportation, had been detained under Schedule 3 of the Immigration Act 1971 for about 26 months after a European Court of Human Rights Rule 39 indication prevented removal. Following unsuccessful bail applications, he sought judicial review, arguing that his continued detention was unlawful and that he was entitled to damages.

Collins J granted permission only on the question of bail, ordered release on bail, and treated the unlawful-detention and damages claims as unarguable. The appeal concerned the effect of that order and whether those claims were in fact arguable.

1. Appeal allowed in part. Lord Justice Davis held that the operative order was the order as drawn, not the possible intention disclosed in subsequent discussion. The order granted permission to apply for judicial review only on the issue of bail. It did not finally dismiss the claims concerning prior unlawful detention or damages.
2. The proper question was whether those claims were arguable. The Court of Appeal rejected the appellant’s attacks based on perversity and inadequate reasoning, but considered that the judge’s conclusion that the claims were certainly not arguable could not stand. The court had to assess arguability, rather than determine the substantive lawfulness of the detention or the merits of the damages claim.
3. The court noted that the detention had been lengthy and that subsequent authorities, including R (Abdi) v Home Secretary [2009] EWCA 1324 (Admin), R (Lumba) v Home Secretary [2011] 2 WLR 671 and R (AR) [2011] EWCA Civ 857, had been relied on in argument. It did not resolve the merits of those issues.
4. The appropriate course was to grant permission to apply for judicial review on the unlawful-detention and damages issues and remit the matter to a High Court judge in the Administrative Court for further consideration. The formal order was: Application granted. Lady Justice Black and the President of the Queen’s Bench Division agreed.

• Court of Appeal (Civil Division): Allowed the appeal to the extent of granting permission for judicial review on the unlawful-detention and damages issues, and remitted the matter to the Administrative Court.
• Administrative Court: Collins J’s decision of 8 September 2009, reflected in an order dated 11 January 2010, granted permission only on whether bail should be granted, ordered release on bail, and treated the prior unlawful-detention and damages claims as unarguable.