AB (Sudan) v Secretary of State for the Home Department

A court should stay immigration proceedings pending a decision in other litigation only where justice requires it. The anticipated decision must be likely to have a critical impact on the proceedings. The possibility that immigration law may soon change does not ordinarily justify delay.

The law declared by the Court of Appeal remains applicable unless and until a superior court or Parliament changes it. Courts should adopt a cautious and robust approach to stays, since excessive use may create substantial backlogs. A stay should therefore end where intervening authoritative decisions provide sufficient guidance and make it unlikely that the awaited appeal will critically affect the case.

A Sudanese refugee challenged his proposed removal to Italy under Council Regulation (EC) No. 343/2003. He alleged that the conditions he would face there would constitute inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights.

Mr Ockelton, sitting as a deputy High Court judge in the Administrative Court, refused to stay the judicial review proceedings pending the Supreme Court appeal in EM (Eritrea) v Secretary of State for the Home Department [2012] EWCA Civ 1336. The claimant appealed that case-management decision. The central question was whether the anticipated Supreme Court judgment was sufficiently likely to have a critical impact on the claim to make a stay necessary in the interests of justice.

1. Appeal dismissed unanimously. The judicial review proceedings should proceed to a final hearing as soon as practicable. Jackson LJ delivered the principal judgment. Davis and Elias LJJ agreed.

2. A stay of proceedings is a case-management measure. The starting point is that a claimant seeks an expeditious determination, and delay should be ordered only for good reason. The court may take account of a foreseeable event likely to affect the determination, the avoidance of wasted resources, the parties’ positions and the court’s own listing responsibilities.

3. Immigration law and relevant country conditions change rapidly. The prospect of a new appellate decision therefore cannot ordinarily justify a stay. As stated in R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895, the law declared by the Court of Appeal remains the law unless and until overruled by a superior court or Parliament. Country-guidance decisions should likewise generally be applied until reversed or superseded.

4. The power to stay immigration proceedings pending other litigation must be exercised cautiously. A stay may be necessary where the impending appellate decision is likely to have a critical impact on the current case. Too liberal an approach would create logjams in an already burdened system. Davis LJ emphasised that a robust approach is appropriate, subject always to the justice of the particular case.

5. When permission to appeal had been granted, it was arguable that the Supreme Court decision in EM would critically affect this claim. The position had subsequently changed. Mohammed Hussein v Netherlands and Daytbegova v Austria had directly considered proposed Dublin II transfers to Italy and had rejected the relevant article 3 complaints. Those developments made it unlikely that the Supreme Court’s clarification in EM would critically affect the present litigation.

6. The Administrative Court would have sufficient guidance from MSS v Belgium and Greece [2011] ECHR 108, NS v Secretary of State for the Home Department [2011] EUECJ C-411/10, EM and the two more recent Strasbourg decisions. There was therefore no continuing justification for a stay. The merits of the claimant’s judicial review challenge remained for determination by the Administrative Court.

1. Court of Appeal (Civil Division): Dismissed the claimant’s appeal against the refusal of a stay. The judicial review proceedings were directed to proceed to a final hearing: [2013] EWCA Civ 921.
2. Administrative Court: Mr Ockelton, sitting as a deputy High Court judge, refused to stay the judicial review proceedings pending the Supreme Court appeal in EM. No citation for that decision is stated.