SG (Iraq) v Secretary of State for the Home Department

Factual and Procedural Background

The appeals concern applications for judicial review of decisions by the Secretary of State to remove or deport individuals who claim they would face persecution, inhuman or degrading treatment, or serious harm if returned to their country of nationality, Iraq. The Secretary of State’s decisions relied on a Country Guidance determination made by the Upper Tribunal (Immigration and Asylum Chamber) in the case referred to as HM and Others (Article 15)(c) Iraq CG. Permission to appeal this Country Guidance determination to the Court of Appeal had been granted.

There are two appellants: SG and OR. SG arrived in the UK in 2002, claimed asylum which was refused, and after unsuccessful appeals, travelled to Ireland to claim asylum before being returned to the UK. His subsequent asylum claims were refused, and removal directions to Iraq were issued. He sought judicial review and a stay of removal, which were refused by Langstaff J. SG was granted permission to appeal Langstaff J’s refusal.

OR entered the UK clandestinely in 2002, claimed asylum, had a criminal conviction, and was subject to deportation orders. His appeals against deportation were dismissed, and he was detained pending removal. He applied for judicial review and bail; permission and bail were refused or granted conditionally at various stages. His applications for judicial review and bail were refused by Irwin J and John Bowers QC. He appealed those refusals.

The Country Guidance determination in HM held that Iraqi nationals could generally be safely returned to Iraq and that the evidence did not demonstrate that returns would involve serious harm. This determination was challenged and permission to appeal was granted by Pill LJ. The Court of Appeal later quashed the HM determination on procedural grounds and remitted it to the Upper Tribunal for re-determination.

The appeals before this court address the proper approach to applications for judicial review and stays of removal when a Country Guidance determination is under appeal.

Legal Issues Presented

1. Whether a Country Guidance determination of the Upper Tribunal remains authoritative and binding pending appeal.
2. Whether the filing of an application for permission to appeal a Country Guidance determination automatically operates as a stay of removal for persons affected by that determination but not parties to the appeal.
3. What is the proper test for granting a stay of removal pending the determination of an appeal against a Country Guidance decision.
4. Whether consistency and fairness require that persons who have exhausted their statutory appeals but are affected by a pending appeal against a Country Guidance determination should be granted stays of removal.

Arguments of the Parties

Appellants' Arguments

• CPR 52.7 provides for an automatic stay of decisions of the Upper Tribunal, including Country Guidance decisions subject to appeal.
• An appeal is considered pending as soon as an application for permission to appeal is made or permission is granted.
• Fairness and consistency require that persons affected by a pending appeal against a Country Guidance decision should be granted stays of removal and permission to apply for judicial review.
• Those whose asylum applications have been determined by the Tribunal and who challenge removal directions should have the same protection as those with pending appeals under sections 77 and 78 of the Nationality, Immigration and Asylum Act 2002.
• Removal of appellants pending appeal would undermine the Country Guidance Practice Direction’s purpose of consistent decision-making.
• Removal pending appeal would render the appeal against the Country Guidance decision nugatory for persons like the appellants.
• Langstaff and Irwin JJ should have granted stays of removal; Mr Bowers QC should have found detention arguable unlawful under established principles.

Secretary of State's Arguments

• CPR 52.7 does not confer an automatic stay on appeals from the Upper Tribunal except as recognized by section 78 of the 2002 Act, which applies only to the appellant whose appeal is pending.
• Langstaff J correctly applied a test of exceptionality in refusing permission and stay; the HM Country Guidance determination was authoritative until set aside.
• Irwin J and Mr Bowers QC correctly refused stays and permission to apply for judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court emphasized that Country Guidance determinations of the Upper Tribunal remain authoritative and binding unless and until set aside on appeal or replaced. This ensures consistency and reliability in immigration decisions, which is essential given the volume of cases and the limited resources for individual country condition assessments.

The Court rejected the appellants' argument that CPR 52.7 automatically stays Country Guidance determinations upon the filing of an appeal or application for permission to appeal. The Court clarified that CPR 52.7 applies to orders and decisions of the lower court, not to findings or determinations within a judgment. Furthermore, section 78 of the Nationality, Immigration and Asylum Act 2002 provides a stay only for the individual appellant whose appeal is pending, not for non-parties.

The Court noted that consistency of decision is desirable but not absolute; differing decisions may be justified when the second decision maker considers the first erroneous. Importantly, SG and OR were not in materially the same position as the appellants in HM, as they had exhausted their statutory appeals and no longer had protection under sections 77 and 78 of the 2002 Act.

The Court confirmed that fairness does not require automatic stays for non-parties to a Country Guidance appeal. Whether a stay should be granted depends on the specific facts and evidence presented, including whether there is clear and coherent evidence that the Tribunal's findings were in error.

Both Langstaff and Irwin JJ correctly applied the law and properly exercised their discretion in refusing permission and stays, considering the authoritative status of the HM determination at the time. Mr Bowers QC was entitled to conclude that detention pending removal was lawful given the reasonable prospect of removal within a reasonable time.

The Court also endorsed procedural improvements to expedite consideration of applications for permission to appeal Country Guidance determinations to minimize delays and disruption.

Holding and Implications

DISMISSED

The Court dismissed the appeals of SG and OR, holding that a Country Guidance determination remains authoritative unless set aside or replaced, and that the filing of an application for permission to appeal does not automatically stay removal directions for persons affected but not parties to the appeal. The Court confirmed that stays of removal pending appeal are discretionary and require clear and coherent evidence that the Tribunal's findings are erroneous.

The decision reinforces the finality and utility of Country Guidance determinations in immigration control, balancing individual protection with the need for an effective and operative immigration system. It clarifies the limited scope of CPR 52.7 and statutory stays under the 2002 Act, and the proper approach to judicial review applications challenging removal decisions reliant on Country Guidance determinations.

No new precedent was created beyond the clarification of existing principles and procedural guidance for future cases.