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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 621
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HON MR JUSTICE NICKLIN
Claim No CO/3341/2019
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HON MR JUSTICE MURRAY
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|SECRETARY OF STATE
FOR THE HOME DEPARTMENT
|THE ADVICE ON INDIVIDUAL RIGHTS IN EUROPE (AIRE) CENTRE
for the Appellants
Julia Smyth (instructed by Government Legal Department) for the Respondent
Simon Cox and Agata Patyna (instructed by Freshfields Bruckhaus Deringer LLP)
for the Intervener
Hearing date: 5 May 2020
Crown Copyright ©
Lord Justice Hickinbottom:
i) By an Order dated 17 January 2020 (sealed on 20 January 2020), on the basis that the appeal was against the refusal of permission to proceed, under CPR rule 52.8(5) and (6), I granted permission to proceed and retained the judicial review claim in this court so that it could be heard at the same time as the appeal in Garrec.
ii) On 30 April 2020, the Appellant made an application to this court to amend his Grounds of Claim in the judicial review. Relying on version 6.0 of the Secretary of State's own guidance "Managing foreign national offenders under 18 years old" (14 January 2016) (which has recently come to the notice of his legal team) and the Appellant's GCID Records (obtained after Murray J's judgment), Mr Bedford submits that there were procedural irregularities in the deportation order because the Appellant, at the time a minor, did not have access to a responsible adult when the notice of liability to deportation was served on him in August 2018. A Youth Offender Team member was present, but that person neither had the function of giving neutral advice or assistance to the Appellant nor did he do so. There is an application to allow the fresh evidence into the appeal which, it I said, both supports the application to amend and also Ground 3 in the appeal.
iii) On 20 March 2020, the AIRE Centre made an application to intervene in the appeal.
iv) On 19 January 2020, the Appellant in person submitted an application to the FtT for an out-of-time appeal of the decision to deport him. The application and the covering letter are both dated 19 January 2020; and there is no reference in either to any earlier application to appeal. The appeal was set down for a hearing on 19 March 2020. The Appellant did not attend. In a determination promulgated on 26 March 2020, on the basis that the Appellant did not lodge an appeal until January 2020 (i.e. after his removal), Designated FtT Judge McClure concluded that the appeal was out-of-time and there were no good reasons for extending time. He accordingly dismissed the appeal. On 22 April 2020, through different solicitors (Turpin Miller), the Appellant lodged with the FtT an application for permission to appeal to the Upper Tribunal on the primary basis that Judge McClure was wrong not take into account the evidence that an appeal to the FtT had been made in June 2019, i.e. the fax front sheet to which I have referred. That application has not yet been determined. I pause to note that, if there was no extant appeal at the time of the Appellant's removal, no question of interim relief pending the outcome of an appeal would arise.
v) On 28 February 2020, Foster J handed down judgment in Hafeez v Secretary of State for the Home Department  EWHC 437 (Admin), in which she held that an EU proportionality analysis in accordance with article 27 of the Directive is required before the power to certify in regulation 33 can be exercised, i.e. a decision to certify can only be made if, on the facts of the particular case, removal is appropriate and necessary to achieve the objective pursued namely to preserve the public interest against the threat posed by the individual. The Secretary of State has indicated that she does not propose to appeal. As a result of that judgment, new guidance to caseworkers has been published, and removals on the basis of certifications prior to the hand down of the judgment have been suspended (and, as I understand it, decisions on certification in those cases will be remade).
"It is also to be remembered that a judge of the Court of Appeal can sit as a judge of the High Court: see section 9(1) of the [Senior] Courts Act 1981. Accordingly a Lord Justice – even one hearing the primary appeal – could, sitting as a judge of the High Court, refuse leave to apply and thus clear the decks for this court to grant leave and add the substantive application for judicial review to the primary appeal, if that was the sensible and most cost-effective way of dealing with the matter."
That suggests that there must be a refusal of permission to proceed by the High Court which can then be referred to this court on appeal; but that decision can be made by a judge of this court sitting as a High Court Judge. It is consistent with CPR rule 52.8(5) and (6) (which, of course, post-date Foster), which provides that, on an application for permission to appeal a refusal of permission to proceed, this court may, instead of giving permission to appeal, give permission to proceed and then retain the substantive judicial review.
i) Although section 9(1) of the 1981 Act provides that a judge of this court may sit as a High Court Judge, he or she may only do so "at the request of the appropriate authority", i.e. the Lord Chief Justice or (in this case) the President of the Queen's Bench Division. I cannot sit as a High Court Judge simply of my own volition.
ii) It is clear that the course suggested by the Master of the Rolls in Foster would be exceptional and rare. Both to refuse permission to proceed as a High Court Judge and then grant permission to proceed as a Judge of the Court of Appeal is a procedural device which could only be used where justice clearly requires it.
iii) Whilst there may be cases in which justice can best be done by determining a judicial review in this court, generally there are good reasons for the Administrative Court retaining its proper role of determining judicial review claims at first instance, including fairness to the parties. That court is able to resolve any factual disputes, and often cull and refine the arguments and issues: and, if this court determines such a claim, then the parties are essentially robbed of one layer of appeal.
iv) In my view, there are more than adequate reasons for not adopting the course proposed by Mr Bedford in this case. In particular, I am entirely unconvinced that it would be a sensible, cost-efficient or indeed just thing to do. As the discussion at the hearing confirmed, there are substantial procedural and legal issues in the judicial review claim that need to be resolved, including the amendments to the claim proposed only last week to which the Secretary of State has not yet had time to respond; and the legal proposition that the FtT cannot entertain an appeal on the basis that a decision is ultra vires and therefore a nullity, so that that issue can and must be determined by the courts. There are also some potential factual issues such as when the Appellant arrived in the UK and the precise circumstances in which he was served with the notice of liability to deportation. I am also unpersuaded, as Mr Bedford contended, that the issues in the appeal now before the court (which concerns interim relief) will wholly or substantially overlap with the issues that might, after any amendments allowed, feature in the judicial review. I accept that some of the new evidence upon which the Appellant wishes to rely in the substantive judicial review may also be relevant in the interim relief appeal; but that does not mean that it is necessary for the two to be merged into one hearing. In my view, such merger would be clearly unwise.