England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Maurice Kay J

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th May 2004

Lord Justice Brooke : This is the judgment of the court.

1. This is an application by Ben Pharis for permission to appeal against an order by Maurice Kay J sitting in the Administrative Court on 19^th June 2003 when he dismissed his application for judicial review of a decision by the Secretary of State to remove him to Nigeria. The grounds for his application were that this decision was wrong in law because he was not from Nigeria. He had told the Secretary of State that he was from Sierra Leone. He did not have a family in Nigeria, and he had not lived in Nigeria because he had lived in Sierra Leone all his life.
2. Maurice Kay J was shown an emergency travel certificate which certified a travel facility valid only for a journey from London to Nigeria. It described the claimant as having been born in Port Harcourt in Nigeria on 10^th October 1972 (his agreed date of birth) and certified that the passport officer in the Nigerian High Commission in London had no reason to doubt the claimant who had told him that he was Nigerian. The claimant for his part asserted that this officer had misunderstood what he said. He placed before the judge what purported to be a certified true copy of a Sierra Leone birth certificate, showing him to have been born in that country of Nigerian parents. The claimant's story was that he had left Sierra Leone after his parents had died and had gone to live with his brother in Gambia for a number of years where he claimed to have been persecuted. Nobody was seeking to return him to Gambia.
3. Paragraph 4(1) of the Immigration (Removal Directions) Regulations 2000 sets out the requirements that may be imposed by removal directions. Paragraph 4(2) provides that:

"Paragraph (1) only applies if the directions specify that the relevant person is to be removed to a country … being –

(i) a country of which he is a national or citizen; or

(ii) a country … to which there is reason to believe that he will be admitted."

4. The judge dismissed the claimant's application on the grounds that the removal direction in issue satisfied the second of these criteria even if it did not satisfy the first.
5. The claimant was present in court on 19^th June 2003 and his time for seeking permission to appeal expired on 26^th June (see CPR 52.15(2)). On 4^th July the Civil Appeals Office received a notice of appeal, but they returned it to him on the grounds that it had been filed out of time and he had not applied for an extension of time, nor stated the evidence on which he sought to rely in support of such an application.
6. He was later to contend that he had faxed a further copy of the Notice of Appeal to the Civil Appeals Office on 24^th July (four weeks out of time). On 8^th September the Civil Appeals Office, having heard nothing since they returned the original notice, inquired of him whether he wished to proceed with his application. By this time he had been moved to a different detention centre. On 22^nd September the office received and sealed a notice of appeal in the proper form.
7. On 6^th October the claimant served his notice of appeal on the Treasury Solicitor, who notified the Judicial Review Unit of the United Kingdom Immigration Service that this notice had been issued.
8. The application was first listed for hearing before Buxton LJ on 13^th January 2004. Shortly before that hearing it had become apparent that the claimant had in fact been deported to Nigeria on 10^th November. On 19^th December Laws LJ directed that the Home Office should explain what had happened.
9. The Home Office's first attempt to explain what had happened was signed by a caseworker who accepted that the Treasury Solicitor had requested the Home Office to defer removal pending the hearing of the application, but said that it appeared that this notification had not been attached to the Home Office file, and that three sections of the file were missing. Buxton LJ directed that a clearer explanation should be given. This elicited a statement by an assistant director of the relevant unit at Leeds who asserted that there was no evidence of the Treasury Solicitor's request on the Port file, or in the other paperwork held by her unit, or in the available Home Office files. She repeated that there were several files missing.
10. Unhappily it was not until the court made on 15^th April 2004 what was a third request for an explanation of what had happened that the Home Office furnished the information the court was seeking. This came in the form of a very clear witness statement by Mr Brian Finegan, the Assistant Director of the Service's Judicial Review Unit ("the unit").
11. He said that the unit had no record of receiving the Treasury Solicitor's request, although he accepted that there was evidence that the relevant fax had been sent. He explained what an administrative assistant in the unit ought to have done on receipt of such a fax. In particular, he/she should have passed it to another official for entry on the directorate's case information database. This was not done in this case. Mr Finegan described the steps that had now been taken to make this data recording machinery more efficient. He could only speculate that the Treasury Solicitor's fax had been sent off to be linked with one of the four sub-files which the unit was still unable to locate. This was the only occasion in the 18 months in which Mr Finegan had been concerned with these matters that such a request had gone astray and not been acted upon, and it had occurred within the first six weeks of the unit's operation. The unit had now in place a more formal supervision structure and more developed training. The case was nevertheless an incident which was embarrassing for it, and for which he offered a sincere apology both to the court and to Mr Pharis.
12. So far as the law is concerned, CPR 52.7 provides, so far as is material, that:

"Unless –

(a) the appeal court or the lower court orders otherwise; or

(b) the appeal is from the Immigration Appeal Tribunal,

an appeal shall not operate as a stay of any order or decision of the lower court."

13. CPR 52.7 reflects the statutory bar on removal pending appeal that is now contained in section 78 of the Nationality Immigration and Asylum Act 2002: see section 104 of that Act for the meaning of the words "pending appeal".
14. Under the regime introduced by section 101 of that Act, the decision of a judge of the High Court on written submissions for a review of the Immigration Appeal Tribunal's refusal of permission to appeal is final (see section 103(3)(c)), so that no appeals in future will lie to this court in those cases. There is still a trickle of cases coming to this court, however, under the previous regime, and the new appellate regime is not concerned with cases like that of Mr Pharis who made a freestanding application for judicial review and did not come within the appeal regime at all. Mr Finegan states that it is the usual but not the invariable practice of the Secretary of State not to remove such a claimant while an appeal to this court is pending.
15. It appears that for a number of years the Treasury Solicitor and the Immigration and Nationality Directorate have operated an arrangement (known as "the Concordat") with the High Court in respect of judicial review proceedings relating to immigration matters where the claimant is subject to removal directions. Provided that an application for judicial review is lodged and an Administrative Court Office number is obtained within three working days (where the claimant is detained) or five working days (where the claimant is not detained) of the relevant decision, removal directions will not be implemented pending the decision of the High Court as to whether, on the papers, to grant permission. In practice, if a claimant renews the application within seven days after the refusal, the Secretary of State does not usually remove him until after the judicial review process has been exhausted.
16. No such arrangement has ever been made with the Civil Appeals Office but once the Secretary of State has been notified that notice of appeal has been filed, Mr Finegan says that in practice the same arrangements are followed, with removal being deferred until after the appeal has been finally disposed of.
17. This practice need not be continued. Experience has shown that the practice of pursuing a further appeal to this court in a judicial review matter in the immigration and asylum field has given rise to very serious abuse, with appellants pursuing wholly unmeritorious appeals simply to delay the time when they are to be deported. In relation to cases involving Nepalese appellants Brooke LJ described the scale of the abuse in his judgment in The Queen on the application of Nine Nepalese Asylum Seekers v Immigration Appeal Tribunal [2003] EWCA Civ 1892. That abuse is continuing.
18. By the time the matter arrives at the Court of Appeal, two High Court judges, who are under a duty to give anxious scrutiny to all these cases, will have refused to grant permission to apply for judicial review, and in the matters which still relate to a refusal by the IAT to grant permission to appeal, that tribunal, too, will have decided that there is no merit in the appeal.
19. We have discussed this matter with the Master of the Rolls and we have his authority to say that in future the lodging of a notice of appeal in the Court of Appeal in an immigration or asylum case when the refusal of a High Court judge to grant permission to apply for judicial review is under challenge should not be interpreted as giving rise to an automatic stay of deportation process. If the appellant wishes to seek a stay, he/she must make an express application for this purpose which the staff of the Civil Appeals Office must place before a judge of this court for a ruling on paper, as already happens when a stay is sought in connection with possession proceedings when the execution of a warrant of possession is imminent.
20. The court would be grateful if widespread publicity is given to this change of practice, so that in future nobody can justly complain that they thought that the lodging of a notice of appeal in such a case with the Court of Appeal, however unmeritorious the grounds, will automatically confer a right to a stay in relation to deportation process. By the same token the court would be grateful if the Civil Appeals Office could be told immediately a deportation takes place after a notice of appeal has been filed in a case where no stay was sought or where a stay was expressly refused.
21. Mr Pharis's case is a good example of the unmeritorious challenges that frequently find their way to this court. Maurice Kay J made it clear why the governing regulations permitted the Secretary of State to deport him to Nigeria, since that country was willing to receive him, and his Notice of Appeal simply did not engage that issue at all. If a stay of deportation had been sought at the time the notice of appeal was filed it would not have been granted, because it would have been evident that there was no merit at all in the proposed appeal. Permission to appeal is therefore refused.
22. This judgment contains guidance of general application. It is therefore released from the normal prohibition on citation of judgments of this kind. Needless to say, there must be no change of practice in those cases in which the statutory ban on deportation pending appeal still applies.