Derani Karthikeya, R (on the application of) v The Secretary of State for the Home Department

A High Court order refusing permission to apply for judicial review after a hearing remains effective unless set aside through a valid procedure, including an appeal. A later judge cannot ignore the order or use the slip rule to delete substantive relief. The High Court has no general power to set aside another High Court order. Where permission has been refused at a hearing, the route provided by Civil Procedure Rules 1998, r.52.8 is an application to the Court of Appeal for permission to appeal. The reconsideration procedure in r.54.12 applies only where permission was refused without a hearing.

The claimant challenged his detention under the Immigration Act on grounds that his leave had not been validly curtailed, that the detention was arbitrary, and that it breached the Hardial Singh principles. An interim-relief hearing was listed before Morris J’s order, but Linden J subsequently refused both interim relief and permission to apply for judicial review at a hearing on 5 August 2022.

The claimant later filed a renewal application, arguing that Linden J’s refusal of permission should be ignored or set aside because permission had not been properly listed or argued. The issue was whether the Administrative Court could disregard or reopen that order, or hear a further application for permission.

1. The application could not proceed. Linden J’s order refusing permission had been made at a hearing and remained in force. It could not be ignored merely because the claimant alleged that the hearing had been intended to address interim relief only.
2. The court had no power to set the order aside. The amendment sought would delete substantive relief and therefore fell outside the scope of the slip rule in r.40.12. In any event, no application to set the order aside had been made. The court identified no general power permitting one High Court judge to set aside another High Court order in the circumstances relied upon.
3. Rule 54.12 did not apply because the refusal of permission had not been made without a hearing. Although the rule provided for reconsideration at a hearing following a paper refusal, it did not authorise repeated applications after permission had already been refused at an oral hearing.
4. The appropriate route was an application to the Court of Appeal for permission to appeal under r.52.8. The claimant would also presumably require an extension of time.
5. The court therefore had no jurisdiction to hear the renewed application for permission. The claimant’s challenge had to be directed against Linden J’s order through the appellate procedure.

1. Administrative Court: Morris J directed an inter partes hearing concerning interim relief on 1 August 2022. Linden J thereafter refused interim relief and permission to apply for judicial review at a hearing on 5 August 2022. The present court held that order effective and declined to hear a further application for permission.