MC (Guinea) & Anor, R (on the application of) v Secretary of State for the Home Department

Courts should exercise caution before staying a block of immigration cases merely because an appellate decision in another case is awaited. The relevant question is whether the pending decision is materially connected with the cases before the court. Material differences, together with arguments which do not depend on the awaited decision, may make continuation of a stay unjustified. A general stay may be lifted while a stay on removal continues pending the next procedural stage.

Three asylum seekers had first claimed asylum in Cyprus and later applied in the United Kingdom. The Secretary of State decided under the Dublin II Regulation that Cyprus was responsible and certified their claims as clearly unfounded, removing any in-country appeal to the First-tier Tribunal. Their judicial review claims alleged that removal would breach Article 3 of the ECHR.

Permission to proceed was refused in each case. Sir Richard Buxton stayed the permission applications pending the Supreme Court’s decision in EM (Eritrea). The Secretary of State applied to lift the stays. The central issue was whether that pending decision justified continuing them.

Lord Justice Jackson, giving the judgment of the court, granted the applications to lift the general stays in all three cases.

1. Guidance on stays. Courts should exercise caution before ordering a block of immigration cases to be stayed simply because an appellate decision is awaited in another case. The approach stated in AB (Sudan) applied.
2. Relevance of the pending appeal. There were significant differences between these cases and EM (Eritrea), which concerned removal to Italy rather than Cyprus. The claimants also proposed to rely on a range of arguments which did not depend on the Supreme Court’s decision in EM (Eritrea), reported at [2012] EWCA Civ 1336. The justification for continuing the stays was therefore weaker than in AB (Sudan).
3. Orders. The general stay imposed by Sir Richard Buxton was lifted. The stay on removal was continued until the conclusion of the Court of Appeal proceedings.
4. The applications for permission to appeal were directed to be listed together, with the Secretary of State represented. The judgment determined only the stay issue; permission itself remained to be decided. A half-day hearing was allowed, and directions for skeleton arguments and related matters were to be agreed and lodged within seven days.

• Court of Appeal (Civil Division) — on the Secretary of State’s applications, lifted the general stays in all three cases, continued the stays on removal, and directed that the permission applications be listed together.
• Administrative Court and deputy High Court judges — permission to proceed with the judicial review claims was refused in each case. The judgment gives no citations for those decisions.