R (MD)(Afghanistan) v Secretary of State  EWCA Civ 194 is an immigration case but merits wider attention because of what it has to say about the interplay between renewing a judicial review claim and appeals.
MD was an asylum seeker. The Secretary of State rejected his application, as did the Asylum and Immigration Tribunal and the High Court. Some 10 days before he was due to be deported, his solicitors submitted a considerable amount of fresh material and sought to bring a new claim for asylum. The Secretary of State refused to accept the new claim and JR proceedings were issued (on the day set for his deportation).
Sales J refused permission to apply for JR and refused interim relief. Now, normally, you’d expect a refusal of permission to apply for JR to be followed by an oral renewal (CPR 54.12(3). MD did not do that, but appealed to the Court of Appeal instead. Carnwarth LJ granted a stay on the deportation pending a “hearing to determine the application for permission to appeal, on notice to the Secretary of State.”
The appeal itself was compromised, but a very important procedural point was identified by the Court of Appeal. Was there any power for the CA to hear an appeal against a refusal to grant permission for JR? CPR 54.12(3) clearly prohibits a party from seeking to appeal a refusal of permission to bring a JR claim.
The appellant submitted that CPR 54.12(3) was ultra vires. The governing law was s.16(1), Senior Courts Act 1981, which provides that any judgment or order of the High Court can be appealed to the Court of Appeal, unless excluded by an order made by the Lord Chancellor. As no such order had been made by the Lord Chancellor, it follows that there was a right of appeal against the refusal to grant permission.
The Court was prepared to assume that there was jurisdiction to hear an appeal in these circumstances. It noted that the effect of this would be – potentially – quite wide, in that it would mean that a party could appeal against a decision to grant permission to proceed with a JR claim.
It would, however, generally be inappropriate for the CA to hear such cases. It would mean that the CA was deciding a case as, in effect, the first instance court, without there being a full judgment below. It would also mean that there would be prejudice to the parties in exercising any further appeal routes.
The correct approach was as follows. First, the application for interim relief and permission for JR should be dealt with by a judge on the papers. If either were refused, there should be an oral renewal, if necessary to the duty judge. At that stage, if refused again, permission to appeal could be sought from the CA. The Court went on to give guidance as to the form of order that should be sought in such cases.
Why is this relevant for housing lawyers? Well, JRs with request for interim accommodation are, shall we say, hardly unknown. It’s helpful to have the CA say that (i) there might be jurisdiction to hear an appeal against that decision; and, (ii) the preferable route is to renew to the duty judge.