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

An application for judicial review does not automatically suspend removal. Where removal directions have been issued, the legality of removal can ordinarily be considered through established procedures before the directions take effect. A broad challenge to enforcement guidance requires its own application for permission and should not be added incidentally to an existing claim. An out-of-time application to vary an order made without a hearing engages the applicable Civil Procedure Rules time limit. Where subsequent reconsideration has overtaken the challenged decisions, permission may properly be refused.

The claimant, a Jamaican national detained under immigration powers, challenged removal directions, her continuing detention, and the refusal and certification of her asylum claim. The Upper Tribunal had refused a stay of removal, and Mrs Justice O’Farrell had refused interim relief on the papers. The claimant later sought renewed interim relief and advanced a wider challenge to chapter 60 of the Secretary of State’s Enforcement Instructions and Guidance. The issues included whether the application was out of time, whether proceedings automatically suspended removal, whether the wider challenge could be pursued in the existing claim, and whether the substantive challenges remained live after the Secretary of State’s letter of 7 March 2017.

1. The application notice issued on 17 March 2017 sought to vary the order made without a hearing by Mrs Justice O’Farrell. Under Civil Procedure Rules 1998, rule 23.8(c), Practice Direction 23A, paragraph 11.2, and rule 3.3, the order was treated as an order made on the court’s own initiative. Rule 3.3(6) therefore required the application to be made within seven days of service unless the court specified another period. The application was out of time.
2. The assertion that issuing judicial review proceedings automatically suspends removal was not accepted. Established procedures enabled the legality of removal directions to be considered by the appropriate judicial authority before removal took effect. Nothing in the material suggested that those procedures would not operate for a charter flight.
3. A challenge to chapter 60 of the Enforcement Instructions and Guidance required a separate application for permission to apply for judicial review. It was not identified in the claim form and could not properly be added without an application to amend. The authorities relied upon in support of that challenge had not been supplied to the court in good time.
4. The complaints concerning removal directions and the refusal and certification of asylum had been overtaken by the Secretary of State’s detailed letter of 7 March 2017. The detention challenge stood or fell with those challenges.
5. Permission to apply for judicial review was refused. The extension of time was also refused because it would serve no practical purpose. There were no removal directions then in force, and no order for costs was made, subject to detailed assessment of the claimant’s publicly funded costs.

The judgment was a first-instance decision. It records that the Upper Tribunal had refused a stay of removal on 3 March 2017 and that Mrs Justice O’Farrell had refused interim relief on the papers on 7 March 2017. The present court refused permission for judicial review and refused an extension of time.