SM (Pakistan) v the Secretary of State for the Home Department

A renewed application for permission to appeal may be adjourned where its outcome depends entirely on a pending appeal in another case. The court should identify the consequences of each possible outcome. If the pending appeal results in an arguable unfair-process ground, permission may be justified. If it removes that ground and the lower tribunals disclose no error of law, permission should be refused.

The applicant, a Pakistani national, claimed asylum on the basis that she was a lone woman at risk of ill-treatment, including following alleged sexual assaults by a relative. The Secretary of State refused the claim. The First-tier Tribunal dismissed her appeal, and the Upper Tribunal found no error of law.

On a renewed application for permission to appeal, the applicant relied principally on the High Court decision in Detention Action v First-tier Tribunal [2015] EWHC 1689 (Admin), which was itself under appeal. The central issue was whether permission could be determined before that appeal was resolved.

1. The renewed application for permission to appeal was adjourned until after the Court of Appeal had decided the pending appeal in Detention Action v First-tier Tribunal [2015] EWHC 1689 (Admin).
2. The applicant’s principal ground was that she had been subjected to an unfair process under the detained fast-track rules. Nicol J had held that those rules were unlawful and that the process under them was unfair, but that decision was subject to appeal. The present application therefore could not fairly be determined while its status remained unresolved.
3. Lord Justice Jackson gave conditional views on the merits. If the High Court decision were reversed, the applicant’s case would be hopeless. Ignoring that decision, the First-tier Tribunal had been entitled to find that she had sufficient protection from the authorities and her family and could safely relocate internally. The Upper Tribunal had correctly found no error of law.
4. If the High Court decision were upheld, the applicant would have an arguable case and permission should be granted. The court accordingly made no final determination of permission and adjourned the application.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was adjourned until after the decision in Detention Action v First-tier Tribunal [2015] EWHC 1689 (Admin).
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal on 12 June 2014, finding no error of law in the First-tier Tribunal’s decision.
• First-tier Tribunal: Dismissed the applicant’s appeal after refusing an adjournment at the hearing on 22 May 2014.