Court of Appeal
Published August 27, 2007

Regina (Madan) v Secretary of State for the Home Department Regina (Kapoor) v Same

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lord Justice Lawrence Collins
Judgment July 25, 2007

Applications for judicial review of deportation decisions had to be made promptly. The Court of Appeal so stated in a reserved judgment following a hearing of applications in judicial review proceedings by Harmit Singh Madan and Barat Kapoor for permission to appeal against the refusal by Mr Justice Mitting on June 26, 2007 to grant injunctions to prevent their removal to Afghanistan.

On an undertaking by the claimants’ solicitors that they would promote the judicial review proceedings with all despatch, and on the Secretary of State for the Home Department’s undertaking to suspend any action on the deportation orders until the applications had been discharged, the court made no order.

Ms Amanda Jones for the claimants; Ms Lisa Giovanetti for the Home Secretary.

LORD JUSTICE BUXTON, giving the judgment of the court, said that the following principles should be followed. They were set out in no special order. All of them were important. Failure to adhere to them could lead to professional sanctions.

1The practice direction to Part 54 of the Civil Procedure Rules 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.

2The 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 paragraph 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 errors alleged to have been committed by the judge in the Administrative Court, general claims that the judge 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 Counsel would remember that where the application was made ex parte there was a particular obligation to draw the court’s attention to relevant authority, including, in particular, country guidance cases.

Solicitors: Malik & Malik; Treasury Solicitor.

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