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

A judge of the Court of Appeal may sit as a High Court judge under section 9(1) of the Senior Courts Act 1981 only at the request of the appropriate authority. The exceptional procedural course of refusing permission in the High Court and then granting permission in the Court of Appeal so as to retain substantive judicial review should be used only where justice clearly requires it. The Administrative Court should ordinarily determine judicial review at first instance, preserving factual resolution, issue refinement and an appeal layer. A separate appeal concerning interim relief does not justify merging proceedings where substantial procedural, legal or factual issues remain and overlap is limited.

Two appeals concerned interim relief arising from deportation decisions affecting EEA nationals. Under the Immigration (European Economic Area) Regulations 2016, the appellants had rights of appeal to the First-tier Tribunal, but interim relief had to be sought through separate judicial review proceedings in the Administrative Court.

Mr Garrec’s deportation order was revoked, making his appeal academic. Mr Mendes had been removed to Portugal, and Murray J refused his application for a mandatory order requiring his return in [2019] EWHC 2233 (Admin). The Court of Appeal considered the procedural route for combining the judicial review with the appeal, and whether the absence of interim relief in the First-tier Tribunal engaged article 31.2 of the Directive or the EU principles of equivalence and effectiveness.

Disposition and procedural route

1. Mr Garrec’s appeal had become entirely academic after the Secretary of State revoked the deportation order. The parties were directed to file a consent order bringing the appeal and claim to an end, with costs to be determined on the papers.
2. In Mr Mendes’s case, the Court revoked the part of its earlier order which had granted permission and retained the judicial review. That order had proceeded on the false premise that the Administrative Court had refused permission to proceed, when it had not. The application for permission to appeal remained outstanding.
3. The court accepted that the procedural route identified in Chief Adjudication Officer v Foster, [1992] 1 QB 31, and reflected in CPR rule 52.8(5) and (6), could in principle permit a judge of this court, sitting as a High Court judge, to refuse permission to proceed and then, as a Court of Appeal judge, grant permission and retain the substantive judicial review. The House of Lords decision in the same litigation, reported as R(IS) 22/93, had not displaced the relevant observations.
4. That course was exceptional and rare. Section 9(1) of the Senior Courts Act 1981 required a request from the appropriate authority before the judge could sit as a High Court judge. In any event, justice did not require retention here. The judicial review involved substantial procedural and legal issues, proposed amendments and fresh evidence, possible factual disputes, and the question whether the First-tier Tribunal could determine an ultra vires challenge. The issues did not wholly or substantially overlap with the interim-relief appeal, and merger would be unwise. The substantive judicial review should therefore proceed in the Administrative Court.
5. The application for permission to appeal, together with the application to adduce fresh evidence, was directed to be heard on a rolled-up basis before a full constitution of the court. The AIRE Centre was permitted to intervene on limited terms, and permission to apply was granted.

• Court of Appeal (Civil Division): Revoked the earlier order retaining the Mendes judicial review, declined to take over the substantive claim, and directed that the permission and fresh-evidence applications be listed before a full constitution.
• High Court (Administrative Court): Interim relief was refused in the related proceedings. Murray J refused Mr Mendes’s application for a mandatory order requiring his return to the United Kingdom in [2019] EWHC 2233 (Admin).