England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE MALES
CO47782012

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th July 2013

Lord Justice Jackson:

1. This is an application by the Secretary of State to lift a stay imposed by Sir Richard Buxton in three cases raising similar issues.
2. In each case the claimant sought asylum in Cyprus. The claimants subsequently came to the UK and applied for asylum in this country.
3. In each case the Secretary of State decided that under the Dublin II Regulation Cyprus was the proper country to deal with the asylum claim. Accordingly, each of the claimants should be removed to Cyprus.
4. The Secretary of State certified in each case that the claimant's various claims to remain in this country were clearly unfounded. The effect of such certification is that each of the claimants had no right of appeal to the First-Tier Tribunal whilst still in this country.
5. Each of the claimants commenced judicial review proceedings, seeking to quash the Secretary of State's decisions. Their essential contention was that, if removed to Cyprus, they would suffer inhuman or degrading treatment contrary to Article 3 of ECHR.
6. In the case of MC (Guinea) His Honour Judge Seys Llewellyn, sitting as a deputy High Court judge, refused permission to proceed with the judicial review claim on 30^th November 2012. MC applied for permission to appeal to the Court of Appeal. Sir Richard Buxton considered this matter on the papers. On 7^th March 2013 he ordered that the proceedings be stayed pending the Supreme Court's decision in EM (Eritrea) v SSHD [2012] EWCA Civ 1336. The material part of his decision reads:

"I understand that an application for permission to appeal in EM (Eritrea) is still pending before the Supreme Court. It certainly cannot be assumed that that application will be unsuccessful, not least because this court took the unusual step of writing into its formal order the doubts that it entertained in relation to its own decision. I appreciate that it is argued that on the facts of the present case the applicant should succeed even when applying the test adopted in EM, but that factual position is far from being sufficiently clear to enable the court, or to make it fair to the applicant, to proceed while various important issues in EM lack an authoritative answer. Those issues include whether the correct test is "systemic deficiency"; if yes, how is that phrase to be defined; and whether the test, in whatever terms, applies to all or some human rights issues as well as to issues of refoulement.

I therefore direct that this application be stayed to await the decision of the Supreme Court in EM. "

7. In the case of Zahra Jafari Mr Justice Males refused permission to proceed with the judicial review claim on 9^th November 2012. Ms Jafari applied for permission to appeal to the Court of Appeal. Sir Richard Buxton considered the matter on the papers. On 8^th March 2013 he ordered that the proceedings be stayed for broadly similar reasons to those which he gave in the case of MC.
8. In the case of FJ (Iran) Mr James Dingemans QC, sitting as a deputy High Court judge, refused permission to proceed with the judicial review claim on 30^th August 2012. FJ applied for permission to appeal to the Court of Appeal. On 14^th March 2012 Sir Richard Buxton considered the matter on the papers. He ordered that the proceedings be stayed for broadly similar reasons to those which he gave in the two previous cases.
9. In all three cases Sir Richard Buxton directed that either party may apply for the stay to be lifted. The reason for this direction was that he had ordered a stay without the benefit of hearing argument on the issue.
10. In all three cases the Secretary of State took advantage of the direction given by Sir Richard Buxton and issued applications for the stays to be lifted. The hearing of those applications took place on 3^rd July 2013.
11. I indicated during the hearing that there seemed to me to be significant differences between the present three cases and EM. Accordingly the claimants would have difficulty in justifying a continuance of the stay until the final decision in EM. Nevertheless I said that I would defer giving a decision on these three cases until the Court of Appeal had given its decision in AB (Sudan).
12. Today this court has handed down its decision in AB (Sudan). As stated in that judgment, courts need to exercise caution before they order that blocks of immigration cases be stayed, simply because an appellate decision is awaited in another case.
13. The claimants in the present three cases are resisting removal to Cyprus, not Italy. As became clear in the course of their counsel's oral submissions, they propose to deploy a range of arguments which do not depend upon the Supreme Court's decision in EM.
14. In my view, the case for granting a stay in these proceedings is weaker than the case for granting a stay in AB (Sudan). As can be seen from the judgment handed down in AB there is to be no stay of those proceedings.
15. I therefore direct that the general stay imposed by Sir Richard Buxton be lifted in all three cases. However, the stay on removal is to continue until the conclusion of the proceedings in the Court of Appeal.
16. The applications for permission to appeal in all three cases are to be listed for hearing together, with the Secretary of State represented. At the hearing on 3^rd July I only heard argument on the stay issue, so am not in a position to deal with the question of permission in this judgment.
17. Half a day is to be allowed for the permission hearing, that being the time estimate agreed by both counsel. In one of the cases no transcript of the judgment challenged is yet available. Directions in respect of skeleton arguments for the permission hearing and related matters are to be agreed between counsel and lodged in the Civil Appeals Office within seven days.
18. I do not reserve this matter to myself. Whether I or some other lord justice deals with the permission hearing will depend upon the exigencies of listing.