PN (Uganda) v The Secretary of State for the Home Department

A stay of a judgment pending appeal is exceptional. The starting point is that a successful party should ordinarily receive the benefit of the first-instance judgment. The party seeking a stay must establish solid grounds, after which the court balances the risks of injustice on each side.

Where implementation of the judgment is linked to an asserted risk of treatment contrary to article 3 of the European Convention on Human Rights, the court must give substantial weight to potentially irreversible harm. That concern may outweigh the opposing party’s inconvenience, including the prospect of further immigration or human-rights claims if the judgment is implemented.

The Secretary of State appealed from Lewis J’s decision in [2019] EWHC 1616 (Admin), which quashed an earlier First-tier Tribunal decision, found procedural unfairness in the Detained Fast Track scheme, and directed steps to return the applicant to the United Kingdom.

Pending the appeal, the Court of Appeal had stayed the return direction. The applicant applied to lift that stay. The central question was whether the balance of justice justified continuing to suspend an order made in her favour, in circumstances where she asserted a risk of persecution in Uganda because of her sexual orientation.

1. Application granted. The stay on Lewis J’s order requiring the Secretary of State to take steps to return the applicant to the United Kingdom was lifted.
2. The governing approach, derived from Department of the Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257 at [8], is that a stay is the exception rather than the rule. The party seeking it must put forward solid grounds. If that threshold is met, the court balances the risks of injustice if the stay is granted or refused.
3. The applicant had a judgment in her favour. The court therefore began from the presumption that she should receive its benefit. The asserted procedural failures had denied her a fair hearing on the central issue of whether she would face persecution in Uganda as a lesbian.
4. The risk of treatment contrary to article 3 was potentially irremediable. The court relied on the principle identified in De Souza Ribeiro v France (Application No 22689/07) (2014) 59 EHRR 10 at [82], that an effective remedy for an expulsion complaint involving a real article 3 risk requires particularly close scrutiny and access to a remedy with automatic suspensive effect.
5. Against that risk stood, at most, moderate inconvenience to the Secretary of State. If returned, the applicant might make a further asylum or human-rights claim, but such claims would remain subject to the usual restrictions. The Secretary of State could not rely on a wider burden from comparable cases because no evidence established that there were other individuals in the same position.
6. The balance of justice lay firmly in the applicant’s favour. The stay was accordingly lifted.

1. Court of Appeal (Civil Division) — The Secretary of State appealed the decision of Lewis J, reported at [2019] EWHC 1616 (Admin). Pending that appeal, the Court of Appeal stayed the return direction. Hickinbottom LJ granted the application to lift the stay.