ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Sales
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE STANLEY BURNTON
| MD (AFGHANISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Vikram Sachdeva (instructed by the Treasury Solicitors) for the Respondent
Hearing dates: 1st February 2012
Crown Copyright ©
Lord Justice Stanley Burnton :
"Although I agree with the judge that this is largely an attempt to boost a case which was disbelieved in 2006 and not appealed, there may be an arguable question as to the Secretary of State's treatment of the new medical evidence."
"5. The case for the grant of permission is set out very clearly in Mr Slatter's grounds of appeal and skeleton. In other circumstances, I would accept that this raises at least a realistically arguable case that the tribunal might have taken a different view had it had the new evidence before it. Two matters make me reluctant to grant permission: first, that this material could probably have been available at the original hearing had the then solicitors done their homework better. It is also of considerable concern that it has taken five years for it to emerge, during which time the claimant has had the benefit of being able to live in this country.
6. The second matter is that even after that period it comes before this court and the Administrative Court less than 24 hours before the planned removal. It clearly makes life extraordinarily difficult for the UKBA if it cannot plan enforced deportations in an orderly way, and for the courts faced with such last-minute applications.
7. For those reasons I am not prepared to grant permission to appeal at this stage. However it might be a case on which the full court could helpfully give guidance about how this court, and possibly also the Administrative Court, should approach a very urgent case like this where apparently substantial material is put forward at a very late stage, but to delay removal might seem to give an unfair advantage to those who submit it so late, and also encourage similar conduct by others. I should make clear that there is a statement from the solicitors which explains why the material came in so late. That will be a matter for which the court will no doubt wish to consider but I make no further comment on it at this stage."
The procedural issue before the Court of Appeal
"The claimant may not appeal [a decision refusing permission to proceed with a claim for judicial review] but may request the decision to be reconsidered at a hearing."
The Court alerted the parties by email before the hearing that there was a question as to the jurisdiction of the Court of Appeal to consider in relation to the refusal of permission to proceed with the claim.
"(1) Subject as otherwise provided by this or any other Act (and in particular to the provision in section 13(2)(a) of the Administration of Justice Act 1969 excluding appeals to the Court of Appeal in cases where leave to appeal from the High Court directly to the Supreme Court is granted under Part II of that Act), or as provided by any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."
No relevant order has been made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999. Mr Southey therefore submitted that section 16(1) conferred jurisdiction on the Court of Appeal to hear the application for permission to appeal and if granted the appeal against Sales J's refusal of permission to apply for judicial review.
The hearing before the Court of Appeal