| IMMIGRATION — Asylum — Deportation — Secretary of State notifying claimants of decision to deport following rejection of claims for asylum and exceptional leave to remain — Claimants’ legal advisers failing to apply for judicial review of deportation decisions until removal imminent — Practice to be followed
R (Madan) v Secretary of State for the Home Department: R (Kapoor) v Secretary of State for the Home Department [2007] EWCA Civ 770
CA: Sir Anthony Clarke MR, Buxton and Lawrence Collins LJJ: 25 July 2007
The Court of Appeal emphasised the importance of making prompt applications for judicial review against deportation decisions and stated the principles to be followed in future cases.
The Court of Appeal heard applications in judicial review proceedings by Harmit Singh Madan and Barat Kapoor for permission to appeal against the refusal by Mitting J on 26 June 2007 to grant injunctions to prevent their removal to Afghanistan. The court made no order on the applications on undertakings by the claimants’ solicitors that they would promote the judicial review proceedings with all despatch and by the Secretary of State to suspend any action on the deportation orders until the judicial review applications had been discharged.
BUXTON LJ, giving the judgement of the court, said that the following principles should be followed. All of them were important and failure to adhere to them could lead to professional sanctions. (1) The practice direction to CPR Pt 54 made provision for the hearing of judicial review applications against removal from the jurisdiction. Such applications had to be made promptly on the intimation of a deportation decision, and not await the actual fixing of removal arrangements. (2) The detailed statement required by the practice direction had to include a statement of all previous applications made in respect of the applicant’s immigration status, and indicate how the present state of the case differed from previous applications. (3) Counsel or solicitors attending ex parte before the judge in the Administrative Court were under professional obligations (a) to draw the judge’s attention to any matter adverse to their client’s case, including in particular any previous adverse decisions; and (b) to take a full note of the judge’s judgment or reasons, which should then be submitted to the judge for approval. (4) Those contemplating thereafter applying to the Court of Appeal should remember that they were most unlikely to succeed unless they could identify an error of law by the judge. (5) The Court of Appeal had no jurisdiction to entertain any application for ancillary relief, such as an injunction against removal, unless an application had been made for permission to appeal against the decision of the Administrative Court. Any application for injunctive relief should either (a) only be made after an application for permission to appeal had been issued; or (b), in cases of real urgency, where the court office was not open, against an undertaking to issue the application (and pay the appropriate fee) at the first opportunity. (6) The Treasury Solicitor should be promptly informed of the intention to apply for injunctive relief, in case he was able and wished to attend. (7) The applicant should put before the Lord Justice (a) the papers that were before the judge in the Administrative Court, including the matter referred to in sub-para (2) above; (b) counsel or solicitors’ note of the reasons or judgment of the judge in the Administrative Court, stating whether or not it had been approved by the judge; ( c) a succinct statement of the error alleged to have been committed by the judge (general claims that he erred in fact or law in taking a particular view, or in his decision as a whole, not being acceptable); and (d) where there had been any delay in bringing the matter before either the Administrative Court or the Court of Appeal, an explanation of that delay. (8) Where an application was made ex parte, counsel had a particular obligation to draw the court’s attention to relevant authority, including in particular Country Guidance cases.
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