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

The Upper Tribunal has power to stay proceedings and must exercise that discretionary case-management power in accordance with the overriding objective. A claimant ordinarily has a strong expectation of expeditious adjudication, and a stay requires good reason.

Great caution is required where a stay is sought because another pending case may affect the outcome. A stay may be justified where the other decision is likely to have a critical impact, but urgent individual claims require especially compelling justification for delay. The vulnerability, welfare and need for prompt family reunion of unaccompanied children may give their claims powerful priority in the balancing exercise.

The Secretary of State applied to stay two judicial review claims brought by AO and AM, or alternatively to transfer them to the Administrative Court. The applicants were Eritrean nationals seeking admission to the United Kingdom through the expedited Dublin III process in order to reunite with refugee family members. Both relied on serious vulnerability and psychiatric evidence.

The Secretary of State contended that the claims raised substantially the same issues as pending Administrative Court proceedings brought by Citizens UK concerning systemic duties towards dispersed children formerly in Calais. The applicants maintained that their claims were fact-sensitive individual rights challenges requiring urgent adjudication.

The central issue was whether the proceedings should be stayed pending the systemic litigation.

1. The Secretary of State’s stay applications were refused. The proposed transfer alternative had not been pursued materially in submissions.

2. The Tribunal had the same power as the High Court to stay proceedings. Section 49(3) of the Senior Courts Act 1981, read with section 25 of the Tribunals, Courts and Enforcement Act 2007 and rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008, established the necessary jurisdiction: [19].

3. The decision whether to grant a stay involved a broad, though not unfettered, discretion. The overriding objective would normally supply the most important considerations. Applying AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921, the Tribunal held that claimants should ordinarily expect expeditious adjudication and that judicial delay required good reason. A stay pending another case required particular caution and could be justified where the anticipated decision was likely to have a critical impact on the current litigation: [18], [21]–[23].

4. An urgent case required especially compelling justification for a stay. Unaccompanied, isolated and psychologically traumatised teenagers seeking prompt family reunion had, in principle, a powerful claim to judicial prioritisation: [24].

5. The present claims were individual rights claims, materially distinct from the systemic Citizens UK challenge. Much generic evidence prepared for that challenge could be used in these proceedings, so there would be no material duplication. Although a stay would be more convenient and economical for the Secretary of State, it would seriously impair the applicants’ access to a court and their compelling entitlement to speedy adjudication. Their rights were determinative: [25]–[28].

6. Further case-management directions were ordered. Costs were reserved.

Not stated in the judgment.