MB & Ors, R (on the application of) v Secretary of State for the Home Department

Where a renewed application for permission raises an important issue that was not expressly argued before the first-instance judge, a single judge may decline to determine permission immediately and refer the issue to the full court. If necessary and appropriate, the full court may hear the appeal at the same time. This course promotes proper argument and fairness to the first-instance judge.

Four applicants had arrived in the United Kingdom after their asylum claims in Malta had been rejected. The Secretary of State certified their claims under the Dublin II Regulations and certified their human rights claims as clearly unfounded.

Mitting J dismissed their judicial review claims. He considered that they were failed asylum seekers, so EU obligations concerning asylum seekers, including the Reception Directive 2003/9/EC, did not apply. Alternatively, he concluded that the threshold for preventing return to Malta had not been reached.

Beatson LJ refused permission on paper. On renewal, the applicants sought to argue that Article 18 of the Charter conferred wider or deeper rights than those under Article 3 of the European Convention on Human Rights. That argument had not been expressly advanced before Mitting J. The issue was whether permission should be determined by the full court.

1. Procedural course. Aikens LJ declined to grant permission to appeal at the single-judge stage. He referred the question of permission to the full court and directed that, if necessary and appropriate, the appeal should be argued at the same time.
2. The underlying claims concerned four applicants whose asylum claims had been rejected in Malta and whose return was proposed under the Dublin II Regulations. Mitting J had treated them as failed asylum seekers and had reached an alternative conclusion that the threshold for preventing return had not been met.
3. The proposed Article 18 argument was a significant part of the case the applicants wished to advance. However, counsel accepted that it had not been expressly argued before Mitting J. In those circumstances, the issue required proper argument before the appellate court, while fairness to the first-instance judge also had to be respected.
4. The applicants relied on Article 18 as potentially providing protection wider or deeper than Article 3 of the European Convention on Human Rights, in an attempt to circumvent the view of the Court of Justice referred to in R (NS Afghanistan) v Secretary of State for the Home Department [2013] QB 102. Aikens LJ did not determine the merits of that argument or decide the effect of Article 18.
5. The Secretary of State’s submissions concerning a fresh decision by the Secretary of State, an out-of-country appeal and a possible Strasbourg reference were not resolved on their merits. The order was confined to the appropriate permission procedure.

• Court of Appeal (Civil Division): Beatson LJ refused permission to appeal on paper on 12 July 2013. On renewal, Aikens LJ referred the permission question to the full court and directed that the appeal could be argued at the same time if appropriate: [2013] EWCA Civ 1701.
• High Court of Justice, Queen's Bench Division: Mitting J rejected the applicants' judicial review claims, treating them as failed asylum seekers and alternatively holding that the threshold for preventing return to Malta had not been reached.