IMMIGRATION — Asylum and Immigration Tribunal — Judicial review — Tribunal immigration judge dismissing claimant’s appeal from Secretary of State’s refusal of asylum — Tribunal senior immigration judge refusing claimant’s application for permission to appeal — Claimant applying for judicial review of tribunal’s decision — Whether judicial review available — Nationality, Immigration and Asylum Act 2002, s 103A (as inserted by Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26(6))

R (F (Mongolia)) v Secretary of State for the Home Department [2007] EWCA Civ 769


CA: Sir Anthony Clarke MR, Buxton and Lawrence Collins LJJ: 25 July 2007

Judicial review remained unavailable in respect of the refusal by the Asylum and Immigration Tribunal to grant permission to appeal against an immigration judge’s decision.

The Court of Appeal so held in a reserved judgment when dismissing an appeal by the claimant, F, from the order of Nicholas Blake QC, sitting as a deputy judge of the High Court on 29 September 2006, whereby he dismissed, by consent, the claimant’s application for permission to apply for judicial review in respect of a senior immigration judge’s refusal of permission to appeal.

BUXTON LJ said that it was submitted that R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 did not bind the court because (1) the decision as to discrimination under art 14 of the Human Rights Convention was inconsistent with subsequent House of Lords authority, A v Secretary of State for the Home Department [2005] 2 AC 68 and R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484; and (2) that all that G’s case decided was that to apply for judicial review was an abuse of process in the context of the 2002 statutory regime, which was significantly different from that introduced by the 2004 Act. In his Lordship’s judgment any differences were of only marginal significance; they did not change the new system to an extent that prevented the application to it of the principle formulated in G’s case. As to art 14, G’s case held that to provide the statutory review process rather than judicial review was not discriminatory of asylum seekers. The House of Lords decisions said no more than that if differential treatment was discriminatory, it was a breach of art 14 for that discrimination to be on grounds of nationality. But that was already very well known, and the Court of Appeal in G’s case said nothing to suggest otherwise. G’s case was therefore not undermined by either case. The court was therefore bound by G’s case. The present appeal, and the application for permission to move for judicial review, failed in limine.

SIR ANTHONY CLARKE MR and LAWRENCE COLLINS LJ agreed.

Appearances: Michael Fordham QC and Raza Husain (Refugee Legal Centre) for the claimant; Clive Lewis and Elisabeth Laing (Treasury Solicitor) for the Secretary of State. The court received written submissions from the Public Law Project, intervening.

Reported by: Isobel Collins, barrister.