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

Permission to appeal against an interlocutory refusal to stay judicial review proceedings should be granted where the claimant’s prospects depend on a rapidly developing and unsettled area of law, and the lower court’s conclusion that the claim had no realistic prospect of success is properly arguable. A recent Court of Appeal decision remains binding unless reversed or overruled, but its correctness and the likely clarification of the law by the Supreme Court may justify avoiding a premature and potentially wasteful trial. The threshold in rule 52.3(6)(a) concerns whether the proposed appeal is properly arguable, not prediction of its eventual outcome.

The claimant, a Sudanese refugee recognised in Italy, entered the United Kingdom and claimed asylum and human-rights protection without initially disclosing his Italian asylum history. The Secretary of State decided that Italy was responsible under the Dublin II Regulation and set removal directions, certifying the claims as clearly unfounded.

The claimant brought judicial review proceedings, alleging that return to Italy would expose him to treatment contrary to Article 3 of the ECHR. While related litigation in EM (Eritrea) was awaiting a possible appeal to the Supreme Court, the Administrative Court refused to stay the proceedings and removal directions. The central issue was whether that refusal was appealable where the claimant’s prospects depended on the unsettled effect of NS v SSHD and the tension with MSS v Belgium and Greece.

1. Permission granted. The application satisfied the threshold in rule 52.3(6)(a) of the Civil Procedure Rules. The court was not required to predict the eventual result of the proposed appeal.
2. The judge below had correctly understood the decision in EM (Eritrea). That decision held that the evidence did not establish systemic deficiency in Italy’s reception arrangements and remained binding unless reversed or overruled by the Supreme Court.
3. It did not follow, however, that the present claim had no realistic prospect of success. The law was developing rapidly. The Court of Appeal in EM (Eritrea) had expressed misgivings about the result it had felt compelled to reach following NS v SSHD, particularly in light of MSS v Belgium and Greece.
4. There was a real possibility that the Supreme Court would grant permission to appeal in EM (Eritrea). It was properly arguable that the judge had erred in concluding that the claimant had no realistic prospect of success. Requiring a premature trial could waste resources if the Supreme Court soon clarified the relevant law.
5. The refusal to stay the removal directions was not material to this application because the Secretary of State had undertaken not to remove the claimant before the judicial review proceedings concluded.

The Court of Appeal granted permission to appeal against the refusal to stay the judicial review proceedings. It made no prediction about the eventual outcome.

• Court of Appeal (Civil Division) — Permission to appeal granted against the Administrative Court’s interlocutory refusal of a stay.
• Administrative Court — On 16 November 2012, Mr Ockelton, sitting as a Deputy High Court Judge, refused to stay the judicial review proceedings and the removal directions.