NB (Algeria), R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

This judgment arises from a hearing following an application for permission to appeal against the refusal by the Immigration and Asylum Chamber of the Upper Tribunal to grant permission to the Appellant to apply for judicial review (JR). The Appellant, an Algerian national, initially made an asylum claim which was refused, and removal directions were issued by the Respondent, the Secretary of State for the Home Department, in January 2011. The Appellant was refused permission to seek JR of the removal directions, with removal scheduled for November 2011. Prior to removal, the Appellant submitted a fresh asylum claim and sought permission to apply for JR on the basis that removal would be unlawful without a response to the fresh claim. A High Court judge granted a stay of removal. The fresh claim was rejected, but a further stay was granted, and the JR application was transferred to the Upper Tribunal. The Upper Tribunal refused permission to apply for JR, prompting the Appellant to seek permission to appeal that refusal from the Court of Appeal, alongside a stay of removal. The Court of Appeal granted a stay and directed written submissions on jurisdictional issues, eventually adjourning the application for an oral hearing to consider these issues fully.

Legal Issues Presented

1. Whether an applicant refused permission by the Upper Tribunal to seek JR can or should seek permission to appeal from the Upper Tribunal or directly from the Court of Appeal immediately following that refusal.
2. Whether, on an application to the Court of Appeal for permission to appeal, the court can grant permission to seek JR directly or must first grant permission to appeal, hear and allow the appeal, before granting permission to seek JR.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
YD (Turkey) v Secretary of State for the Home Department [2006] EWCA Civ 52	Establishment of the Court of Appeal's inherent jurisdiction to grant stays to protect its proceedings from being rendered ineffective.	The Court relied on this precedent to conclude that it has jurisdiction to grant a stay against removal pending consideration of permission to appeal after the Upper Tribunal refuses permission to seek JR, to prevent the removal undermining the appeal rights.
R v Secretary of State for the Home Department ex p Jeyeanthan [2000] 1 WLR 354	Analysis of when courts may disregard procedural infringements and treat subsequent steps as valid.	The Court rejected the argument that it could disregard statutory and procedural rules to allow premature applications for permission to appeal, emphasizing the need to uphold statutory provisions.
Farley v Child Support Agency [2005] EWCA Civ 869	Exceptional circumstances permitting procedural irregularities.	The Court noted the decision but expressed strong reservations about its applicability outside extraordinary circumstances, implying it should not guide routine practice.

Court's Reasoning and Analysis

The Court first analyzed the statutory framework governing JR applications and appeals, including the Tribunals, Courts and Enforcement Act 2007, the Senior Courts Act 1981, the Upper Tribunal Rules 2008, and the Civil Procedure Rules (CPR) Part 52 and associated Practice Directions. It identified a prescriptive procedural sequence requiring an applicant refused permission to seek JR by the Upper Tribunal to first obtain permission to appeal from the Upper Tribunal before applying to the Court of Appeal. This sequence includes a delay caused by the need for the Upper Tribunal to provide written reasons before the permission to appeal application can be made. The Court rejected the argument that these provisions could be bypassed by treating refusals as not constituting 'decisions' under the relevant statutory sections.

Regarding the Court of Appeal's powers, the Court noted that while CPR 52.15 allows the Court of Appeal to grant permission to seek JR at the permission to appeal stage for cases from the Administrative Court, no equivalent provision applies to appeals from the Upper Tribunal. The Court considered an unorthodox procedure whereby a single Lord Justice might grant permission to appeal, hear and allow the appeal, and grant permission to seek JR without an oral hearing, but did not decide on its propriety due to limited argument.

The Court then addressed the issue of whether it has jurisdiction to grant a stay of removal pending the appeal process after the Upper Tribunal refuses permission to seek JR. Relying on the precedent in YD (Turkey), the Court held it has inherent jurisdiction to grant such a stay to protect the effectiveness of its proceedings. The Court acknowledged practical difficulties, including the potential for numerous stay applications and the inconvenience caused by the procedural delays inherent in the current framework.

The Court rejected any suggestion that it could disregard statutory procedural requirements to allow earlier applications for permission to appeal, emphasizing the importance of adherence to the established legal framework. It acknowledged the need for reform and suggested amendments to the Upper Tribunal Rules to permit earlier applications for permission to appeal and to allow the Court of Appeal to grant permission to seek JR on appeals from the Upper Tribunal, similar to the provisions applicable to the Administrative Court.

In the interim, the Court indicated a default presumption in favor of granting stays to protect applicants' rights, noting that the Secretary of State had accepted this position in the present case.

Holding and Implications

The Court CONTINUED THE STAY of removal granted by Sullivan LJ and extended subsequently, maintaining it until the determination of the Appellant's application for permission to appeal.

The Court held that permission to seek JR of the removal decision could not be granted by the Lord Justice considering the permission to appeal application but must be decided on the appeal itself.

The decision ensures protection of appellants against removal pending appeal but confirms the requirement to follow the procedural steps mandated by statute and rules. No new precedent altering the statutory framework was established; rather, the Court highlighted the need for legislative and procedural reform to address practical difficulties in the current system.