SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940

Case Nos: C4/2011/2921,Case No C4/2012/0569[2012] EWCA Civ 940
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2011] EWHC 3818 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Irwin
John Bowers QC (sitting as a Deputy Judge of the High Court)
[2012] EWHC 828 (Admin)
Mr Justice Langstaff
[2011] EWHC 2428 (Admin)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/07/2012
Before
LORD JUSTICE MAURICE KAYLORD JUSTICE STANLEY BURNTONLORD JUSTICE GROSS
Between
SG (Iraq)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentOR (Iraq)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Stephen Knafler QC and Declan O’Callaghan (instructed by Duncan Lewis & Co) for SGStephen Knafler QC and Sonali Naik (instructed by Lawrence Lupin) for ORDavid Blundell (instructed by the Treasury Solicitor) for Secretary of State for the Home DepartmentHearing Hearing dates : 20, 21 June 2012
JudgmentLord Justice Stanley Burnton :Introduction
[1]The appeal of SG and the application for permission to appeal of OR concern the proper approach of the Court to applications for judicial review of decisions of the Secretary of State to remove or to deport persons who claim that if returned to the country of their nationality they will suffer persecution or treatment contrary to Article 3 of the European Convention on Human Rights, or even be killed, or will suffer serious harm within the meaning of Article 15 (and in particular Article 15(c)) of the Qualification Directive, Council Directive 2004/83/EC, in circumstances in which the Secretary of State has in making her decision relied on a Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber) and permission to appeal to the Court of Appeal has been granted to the individual parties to it.[2]There are before us:(1) the appeal of SG against the order made by Langstaff J on 3 August 2011 refusing him permission to apply for judicial review of the decision of the Secretary of State to remove him to Iraq and refusing to grant him a stay of his removal;(2) the application for permission to appeal of OR against the decision made by Irwin J on 20 October 2011 refusing him permission to apply for judicial review of the decision of the Secretary of State to deport him to Iraq, ordered to be heard with the appeal of SG, with the appeal to follow if permission was granted; and(3) OR’s appeal against the order made by John Bowers QC (sitting as a Deputy Judge of the High Court) dated 7 February 2012 refusing him permission to apply for judicial review of the decisions of the Secretary of State to detain him pending his removal to Iraq. I would grant OR permission to appeal against the decision of Irwin J.[3]These appeals raise a point of importance because other High Court judges have made different orders on applications for permission to apply for judicial review and for a stay in cases in which there is a pending application for permission to appeal or a pending appeal in an applicable Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber).

The proceedings (a): SG

(a) : SG

[4]SG is a national of Iraq. He arrived in the UK as long ago as 2002 and claimed asylum on the same day. His asylum claim was refused on 24 July 2003. His appeal against that decision was dismissed on 19 November 2003. He did not, however, return to Iraq. Instead, he travelled to Ireland and claimed asylum there on 9 January 2007. He was returned to the UK without consideration of his asylum claim on 3 April 2007. He claimed asylum in the UK again for a second time on his return. His second asylum claim was refused on 31 July 2007. His appeal was dismissed on 23 September 2007. His appeal rights were exhausted on 29 January 2008. He made further representations on 2 October 2009 which were rejected on 16 December 2009.[5]He applied for the Assisted Voluntary Return scheme on 17 August 2010, but declined a monetary settlement offered on 31 August 2010. Removal directions were set for his removal on a charter flight to Iraq on 6 September 2010.[6]The appeal to the Upper Tribunal (Immigration and Asylum Chamber) in the Country Guidance case HM and Others (Article 15)(c) Iraq CG [2010] UKUT 331 (IAC)was heard between 8 and 10 June 2010. Shortly before the hearing, the appellants in that case ceased to be legally represented. Having carefully considered the difficult situation in which it found itself, the Tribunal decided to proceed with the appeal, notwithstanding that the appellants were unrepresented and there was no one to present their case or to challenge the evidence of the Secretary of State.[7]On 6 September 2010 Collins J granted an injunction preventing SG’s removal following the issue of the present proceedings.[8]On 20 September 2010 the Upper Tribunal promulgated its Country Guidance determination in HM. In essence, the Tribunal decided that Iraqi nationals could generally be safely returned to Iraq, and that the evidence relating to UK returns of failed asylum seekers to Iraq did not demonstrate that the returns process would involve serious harm.[9]On 8 October 2010 Lindblom J refused on the papers to grant SG permission to apply for judicial review of the Secretary of State’s decision to remove him to Iraq and her refusal of his further human rights representations. SG’s representatives made further submissions on his behalf, based on a medical report from Dr Sarkar dated 7 October 2010. Although Lindblom J had ordered that renewal was to be no bar to removal, a further injunction was granted on 26 October 2010 by Mr Graham Wood QC, sitting as a Deputy High Court Judge. On 28 October 2010, SG was released from detention. On 17 January 2011 the Secretary of State refused to recognise the further representations as a fresh claim within the meaning of paragraph 353 of the Immigration Rules.[10]On 15 April 2011 Pill LJ granted permission to appeal against the determination of the Upper Tribunal in HM. His reasons were as follows:
“The AIT (sic) was put in a difficult position by developments shortly before the hearing, particularly having resolved that the case should be a country guidance case. Careful consideration was plainly given at each stage to the procedure to be followed. The merits were also carefully considered. I have also considered the helpful written submissions on behalf of the Secretary of State. I am sufficiently concerned about the procedural issues raised, especially in a case which was to become a country guidance case, to grant permission to appeal. They merit consideration by this court. Rulings may have an impact on the merits and article 15(c) may be argued.”
[11]Shortly before his renewed oral permission hearing, SG served Amended Grounds of Claim. His new grounds challenged his removal on three grounds, namely that removal to Baghdad would breach his rights under Article 3 and Article 5 of the ECHR, that the Secretary of State’s consideration of the further representations in the decision letter of 17 January 2011 was flawed and that removal would breach Article 15(c) of the Qualification Directive. He sought a stay of removal until the conclusion of the judicial review claim.[12]Langstaff J refused both the stay and permission to claim judicial review on 3 August 2011: [2011] EWHC 2428 (Admin). He concluded that, on the basis of the determination of the Upper Tribunal in HM,SG had no prospect of succeeding in his challenge to the decision of the Secretary of State. The question arose whether, in the light of the fact that an appeal against the determination in HM was pending, the Court should grant permission or a stay. Other judges, in other cases, had done so. Langstaff decided otherwise. He said:
“19 I have to resolve this, as it seems to me, as a matter of principle. I have to apply the law, and that means the law as it currently stands. On the law as it stands, HM, country guidance, is to be followed. That provides that I should treat the conditions on return to Iraq as not being such as to expose a claimant to a real risk of inhuman or degrading treatment or worse. … if HM is and represents true guidance, it would not, on its own, as it seems to me, be a sufficient reason to restrain removal or to think that it would be arguable in this case that an immigration judge might come to a different conclusion on a fresh claim and that the Secretary of State should so much have appreciated that that her decision, anticipating the decision of an immigration judge, would be wrong on judicial review grounds. 20 Accordingly, I would not give permission as the law currently stands. Should I give a stay? It is trite that, if every time an appeal was to go from one court to another, all cases raising similar points were to be stayed, the system of justice would be bunged up. This does not make sense. The general rule is that a stay should not be given on that basis: there would have to some special and unique feature, some exceptional reason for granting it. 21 I realise that, in taking this approach, I differ from an approach which has plainly been taken in response to the particular arguments in their cases, whatever they may be, by the judges to whom I referred, and I infer by some others. But it seems to me right in principle to take that approach. As Mr Blundell says, the fact that the concerns in HM are procedural and therefore indirectly attack the basis for the decision does not make any exception to the general rule which would be that no stay should normally be granted where a case was directly attacked as wrong in principle or decided in misapprehension of fact. There is no particular reason here for thinking that the whole basis of HM is undermined by what has taken place. In particular, I note that HM itself did carefully consider such information as the court had of the very nature which I am asked to say might make a difference.”
[13]Langstaff J did not refer to the judgment of Mr C M G Ockleton, sitting as a Judge of the High Court, in R (Qader) v. Secretary of State for the Home Department [2011] EWHC 1765 (Admin), which had been given on 8 July 2011, and to which I refer below, although it had been cited to him.[14]The appeal to the Court of Appeal in HM was heard on 30 November 2011. Having heard submissions on the procedural ground of appeal, namely that the Upper Tribunal had erred in proceeding with the appeal before it when the appellants were unrepresented, the Court announced its decision to quash the determination and to remit it to the Upper Tribunal. Paragraphs 1 and 2 of the order made by the Court were as follows:
“It is ordered that: 1) the appeal be allowed and the case remitted to the Upper Tribunal (Immigration and Asylum Chamber) to be re-determined as country guidance by a panel whose constitution is to be decided by the President of the Immigration and Asylum Chamber 2) determination of the Immigration and Asylum Chamber in this appeal dated 21st September 2010 is quashed with the consequence that it ceases on all issues to be authoritative country guidance.”
[15]On 4 January 2012 Davis LJ granted SG permission to appeal the decision of Langstaff J, for the following reasons:
“2. [the decision of the Court of Appeal in HM] in itself would incline me to grant permission in this case. 3. But there is another, and wider, reason which in my view provides a compelling reason for granting permission to appeal: that is, the uncertainty and apparently divergent practice between Queen’s Bench Division judges, in cases where it is represented that an ostensibly governing decision (in the form of a Country Guidance decision) is the subject of a pending appeal to the Court of Appeal. Langstaff J understandably referred to this, with some concern, in paragraph[s] 21 and 22 of his judgment. 4. My preliminary view is that the approach of Langstaff J is the principled one and the right one as to what the general rule on stay should be and is (absent exceptional circumstances). Otherwise, as he said, the system could become bunged up by reason of the raising by applicants of possibilities that the law heretofore existing might hereafter change. This is, moreover, a situation which can arise in a context other than the present HM Country Guidance context. It would benefit, if it is not considered academic in the context of this case, from Court of Appeal guidance. It is certainly not justifiable that there be a divergence of practice at first instance such as Langstaff J had described.”

The proceedings (b): OR

[16]OR too is a national of Iraq. He entered the UK clandestinely on 1 July 2002 and claimed asylum. His claim was refused on 6 August 2002, but he was granted Exceptional Leave to Remain until 6 August 2006.[17]On 11 August 2005, OR was convicted of two counts of “detaining a child without lawful authority so as to remove from lawful control”. He was sentenced on 5 September 2005 to a term of imprisonment of 2 years and 4 months. In his sentencing remarks, His Honour Judge Wide QC described the offences as “very serious” and “extremely serious”.[18]On 24 April 2006, OR was served with a notice of a decision to deport him. He appealed against that decision but his appeal was dismissed on 31 October 2006 by Immigration Judge Field. His appeal rights were exhausted on 8 November 2006. On 5 March 2007, he was served with a signed deportation order.[19]Following the end of the period of imprisonment to which he had been sentenced, OR was detained under the detention powers in the Immigration Act 1971. He applied for bail but this was refused on the ground of the risk of his absconding.[20]On 8 July 2008, OR was accepted onto the Facilitated Returns Scheme. In consequence the deportation order was revoked. However, he withdrew from the scheme on 28 July 2008. On 13 August 2008 the Secretary of State wrote to him indicating that, following promulgation of HH (Criminal record; deportation: “war zone”) Iraq [2008] UKAIT 00051, he would reconsider his case. The Secretary of State did so, and informed him by letter dated 19 September 2008 that he was maintaining the decision to deport him. Accordingly, on the same date, the Secretary of State served him with a new decision to deport him.[21]OR appealed against that decision on 25 September 2008. His appeal was dismissed on 6 November 2008. His appeal rights were exhausted on 14 November 2008. On 23 December 2008, a new deportation order was signed.[22]On 26 March 2009, OR was granted bail. On 20 October 2009, another deportation order was signed. It was served on him on 24 October 2009. On 13 May 2010, a decision was taken to re-detain him, and he was re-detained on 18 May 2010.[23]On 27 August 2010, the Secretary of State set directions for OR’s removal to Iraq to take place on 6 September 2010. On 3 September 2010, OR lodged his judicial review claim challenging his removal. On 6 September 2010, Collins J granted him a temporary injunction.[24]As mentioned above, on 20 September 2010 the Upper Tribunal (Immigration and Asylum Chamber) promulgated its Country Guidance determination in HM. Silber J refused permission to apply for judicial review in the removal challenge on the papers on 12 October 2010. He set aside the injunction that had been granted by Collins J and ordered that renewal was not to be a bar to removal. Accordingly, on 13 November 2010 the Secretary of State served removal directions. However, on 18 November 2010, the European Court of Human Rights made a direction under rule 39 of its Rules of Court preventing OR’s removal. A notice of renewal was lodged but no further interim relief.[25]On 3 March 2011, OR commenced proceedings challenging the failure to provide him with an address for the purposes of section 4 of the Immigration and Asylum Act 1999 (the “1999 Act”). The claim included an application for bail. Permission was refused on the papers by HHJ Bidder QC.[26]As mentioned above, on 8 July 2011 Mr Ockleton gave judgment in Qader. The claimant in that case, like the present appellants, challenged his removal and contended that he was entitled to do so by reason of the grant of permission to appeal in HM. He also put before the Court some evidence that had not been before the Tribunal in HM. Mr Ockleton refused permission to apply for judicial review. He said:
“37. … whatever the formal status of HM, there is not in my judgment the slightest reason to suppose that the conclusions it reaches are wrong. I have declined to speculate on the outcome of the appeal to the Court of Appeal, but even if that appeal is successful it is unlikely that that Court would itself undertake the task of giving country guidance. If the appeal were remitted to the Upper Tribunal, the latter would look at the available evidence, including no doubt the new material now produced. For the reasons I have given, that material does not show that the guidance should be different.”
[27]The permission applications and application for bail were renewed before Irwin J on 19 and 20 October 2011. As appears above, at that date Pill LJ had given permission to appeal in HM, but the appeal had not been determined (it was listed for 30 November 2011 and 1 December 2011). Irwin J reviewed the authorities on country guidance determinations and continued:
“15. In the light of that review of what should be the impact of a country guidance case, it seems to me that in this instant application for permission, one would need a clear and coherent body of evidence to show that the conclusion reached in HM was in error. In particular, one would look for clear and coherent evidence coming after the country guidance decision was reached, before the starting point and guidance given in such a case should be departed from. I recognise that, as Mr Ockleton said in the course of his decision in Qader, permission for appeal may be given for many reasons. It seems to me adventurous to seek to draw quite general conclusions as to the reliability of any case or of any decision -- and particularly a decision which is denominated as a country guidance case -- merely from the fact that permission to appeal has been granted.”
[28]Irwin J considered that there was no “clear and coherent evidence” indicating that that the determination of the Upper Tribunal in HM should not be followed, and he refused permission in the removal challenge. It is the appeal against that decision which now constitutes the OR removal appeal. He adjourned the hearing of the section 4 challenge for the Secretary of State to serve evidence. OR had by this time also sought to introduce a new ground of challenge, alleging that he had been unlawfully detained.[29]Pursuant to that order, the Secretary of State served the witness statement of Linda Hopkins on 4 November 2011.[30]OR applied for bail to the First-tier Tribunal (Asylum and Immigration Chamber) on 9 November 2011. His application was heard on 15 November 2011 and he was granted conditional bail on the same day.[31]The adjourned permission hearing came on before King J on 23 November 2011. He adjourned the application for permission with directions. There was also before him an application to amend the claim to challenge the legality of OR’s original period of detention between 2006 and 2008. That application was refused. OR did not seek to appeal against that finding.[32]OR filed his Amended Grounds of Claim on 14 December 2011. The matter came on for a permission hearing before Mr John Bowers QC on 7 February 2012. He refused to grant permission on the unlawful detention aspect of the claim but granted permission to claim judicial review of the section 4 decision. That aspect of his claim remains stayed in the High Court. The appeal against the unlawful detention decision forms the OR detention appeal before us.

The legislative framework

[33]Stays in appeal proceedings are the subject of CPR 52.7:
“Unless – (a) the appeal court or the lower court orders otherwise; or (b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal, an appeal shall not operate as a stay of any order or decision of the lower court.”
[34]Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) confers a right of appeal against immigration decisions (defined in section 82(2)) made by the Secretary of State to the First Tier Tribunal.[35]Sections 77 and 78 of the 2002 Act are as follows: “77No removal while claim for asylum pending (1) While a person’s claim for asylum is pending he may not be–(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section– (a) ‘claim for asylum’ means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and (b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it. (3) … (4) Nothing in this section shall prevent any of the following while a claim for asylum is pending– (a) the giving of a direction for the claimant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the claimant, or(c) the taking of any other interim or preparatory action. (5) … 78No removal while appeal pending (1) While a person’s appeal under section 82(1) is pending he may not be– (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section ‘pending’ has the meaning given by section 104. (3) Nothing in this section shall prevent any of the following while an appeal is pending– (a) the giving of a direction for the appellant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the appellant (subject to section 79), or (c) the taking of any other interim or preparatory action. (4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92. (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (a) ‘claim for asylum’ means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and (b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it. (a) the giving of a direction for the claimant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the claimant, or (c) the taking of any other interim or preparatory action. (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (a) the giving of a direction for the appellant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the appellant (subject to section 79), or (c) the taking of any other interim or preparatory action.[36]So far as is material, section 104 provides: “Pending appeal (1) An appeal under section 82(1) is pending during the period–(a) beginning when it is instituted, and(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99). (2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while— (a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination, (b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination. …” (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).[37]Section 11 of the 2007 Act confers a right of appeal from the First Tier Tribunal to the Upper Tribunal with the permission of either, and section 13 confers a right of appeal from the Upper Tribunal to the Court of Appeal, with permission of either the Upper Tribunal or the Court of Appeal.[38]Section 107(3) of the 2002 Act authorises the making of practice directions which:
“(a) may require the Tribunal to treat a specified decision of the Tribunal or Upper Tribunal as authoritative in respect of a particular matter; and (b) may require the Upper Tribunal to treat a specified decision of the Tribunal or Upper Tribunal as authoritative in respect of a particular matter.”
[39]Section 12 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal of the Senior President of Tribunals dated 10 February 2010 concerns the status of starred and Country Guidance determinations. So far as is relevant, it provides: “12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-(a) relates to the country guidance issue in question; and(b) depends upon the same or similar evidence. 12.3 A list of current CG cases will be maintained on the Tribunal’s website. Any representative of a party to an appeal concerning a particular country will be expected to be conversant with the current “CG” determinations relating to that country. 12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.” (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence.

The submissions of the parties

[40]For the appellants, Mr Knafler QC submitted:(1) CPR 52.7 provides for an automatic stay of decisions of the Upper Tribunal (Immigration and Asylum Chamber), including country guidance decisions which were the subject of an appeal.(2) For this purpose, there is an appeal as soon as an application for permission to appeal is made. Alternatively, CPR 52.7 takes effect when permission to appeal is granted.(3) The interpretation of CPR 52.7 as operating to stay a country guidance decision that is the subject of an appeal is required by its clear words, but also by the requirements of fairness and consistency in the treatment of persons in a like position.(4) Quite apart from CPR 52.7, considerations of fairness and consistency of decision required the grant of permission to apply for judicial review and/or for a stay of the removal directions in cases such as those of SG and OR.(5) Consistency and fairness required those whose asylum applications had been determined by the Tribunal, and who challenged the Secretary of State’s decision to issue removal directions, should have the same protection against removal as those whose cases had not been finally decided by the Tribunal, who were protected by sections 77 and 78 of the 2002 Act.(6) The same considerations required that persons such as the present appellants should have the same opportunity to challenge a country guidance decision as those persons who were the appellants before the Tribunal and the Court of Appeal. To remove the present appellants while there was a stay of the removal of the appellants in HM would produce the inconsistency of decision that the Country Guidance Practice Direction was designed to avoid.(7) Moreover, the effect of their removal pending the decision of the Court of Appeal would have been to render the appeal against the Tribunal’s country guidance decision nugatory so far as the present appellants were concerned.(8) It follows that both Langstaff and Irwin JJ should at the very least have granted the appellants a stay of their removal directions, and Mr Bowers QC should have found that when OR was detained it had been arguable that there had been no prospect of his being removed within any reasonable time, so that his detention had been arguably unlawful under Hardial Singh [1983] EWHC 1 (QB), [1984] 1 WLR 704, principles. The appeals against their decisions should be allowed.[41]Mr Knafler conceded that the medical evidence before Langstaff J did not of itself justify his being granted a stay or permission to apply for judicial review. His submission was that both SG and OR were effectively in the same position as the appellants in HM.[42]For the Secretary of State, Mr Blundell accepted that both Langstaff and Irwin JJ had had a discretion whether or not to grant a stay or injunctive relief. He submitted:(1) CPR 52.7 does not confer an automatic stay on appeals from the Upper Tribunal (Immigration and Asylum Chamber). Paragraph (b) of CPR 52.7 does no more than recognise that there is an automatic stay conferred by section 78 of the 2002 Act, but such a stay is confined to the person whose appeal is pending.(2) Langstaff J had been right to apply a test of exceptionality. At the date of his decision, HM was an authoritative Country Guidance determination. It remained so until it was set aside.(3) It followed similarly that Irwin J had been right to refuse a stay, and Mr Bowers QC had rightly refused permission. Discussion Country Guidance determinations

Discussion

[43]Mr Knafler understandably emphasised that the purpose of the Country Guidance system, as stated in the Country Guidance Practice Direction, is to secure consistency of decisions. However, consistency of decision would follow from a requirement to follow any decision of the Upper Tribunal. I think that it is necessary to stand back and to consider what, apart from the desirability of consistency, is the purpose of Country Guidance determinations.[44]I would emphasise that in the present context the primary purpose of the system of immigration decisions and appeals is to ensure that those who seek the protection of this country are not returned to their country of origin if on their return they will risk death or ill treatment or serious harm, in breach of this country’s international obligations under the Refugee Convention, the European Convention on Human Rights and the Qualification Directive. It is therefore important that those who make the decisions on claims for protection have available a reliable determination of conditions in the country of origin of those who seek protection so as to determine whether or not there is such a risk.[45]There are simply not the resources for a detailed and reliable determination of conditions in foreign countries to be made on an individual basis on each decision on the application or appeal of persons seeking protection. There are far too many such cases, as is demonstrated by the Secretary of State’s use of charter flights to accommodate the large numbers of returnees to countries such as Afghanistan and Iraq. Neither those representing those seeking protection nor the Secretary of State herself have the resources for the detailed, lengthy and costly investigation of conditions on return that is appropriate, given the potential risk to the returnees, in every case. Even if the resources were available, it would be wasteful to have such an investigation, involving much the same evidence, in every case. There would also be a risk of inconsistent decisions, a consideration that is particularly important in the present context since it follows from a decision that one person requires protection, if correct, that a person in the same situation who has been returned may have risked or suffered ill treatment or worse.[46]The system of Country Guidance determinations enables appropriate resources, in terms of the representations of the parties to the Country Guidance appeal, expert and factual evidence and the personnel and time of the Tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the Country Guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination.[47]It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.[48]It is perhaps relevant that Mr Knafler did not suggest that there is any unfairness in the application of a Country Guidance determination to the claims of persons who were not parties to the appeal that led to that determination, and who therefore had no opportunity to address the evidence and issues considered by the Tribunal that made that determination.[49]Mr Knafler tentatively suggested that Country Guidance determinations are not binding on the Administrative Court or the Court of Appeal, since the Country Guidance Practice Direction does not apply to them. However, he did not persist in this contention. He is correct that the Practice Direction does not apply to the Administrative Court or to the Court of Appeal directly. However, in a case in which the claimant has had his appeal finally determined against him by the First Tier Tribunal or the Upper Tribunal, his only basis for seeking judicial review of his removal will be that he has made a fresh claim for the purposes of paragraph 353 of the Immigration Rules. By definition, a fresh claim is one that has a realistic prospect of success before (assuming it is rejected by the Secretary of State) the Tribunal; and the Tribunal must treat the Country Guidance determination as authoritative. It follows that quite apart from the requirements of judicial comity, in deciding whether a person’s judicial review of removal directions has a real prospect of success, the Administrative Court and the Court of Appeal must treat Country Guidance determinations as authoritative.[50]Lastly under this head, I refer to what Mr Ockleton, who has very considerable experience in this area, said in Qader:33. … I do not derive any assistance from submissions about what Pill LJ may have thought or intended in granting permission in HM, or from speculation about what the outcome of the appeal to the Court of Appeal may be. There are many reasons why permission may be granted, one (albeit only one) of which is to allow a higher court to give its approval to a process or decision that has been challenged. And it is not unknown for challenges in the Court of Appeal to country guidance decisions to be successful solely in relation to the specific appellant, leaving the guidance itself essentially unimpaired. No substantive conclusion can be drawn from the grant of permission; but nor on the other hand can it be assumed, as Mr Dunlop would have it, that the only issues to be considered by the Court will be related to the Tribunal's procedure.34. The proposition that a decision endorsed as country guidance by the President of the Immigration and Asylum Chamber of the Upper Tribunal loses its force by being challenged, or even by permission to appeal it being granted, I regard as entirely unarguable. The Tribunal has reached a reasoned decision after a review of a mass of relevant evidence. That conclusion remains binding within the terms of the Practice Direction, unless or until it is overturned on appeal or replaced by other guidance. And even if that were not so, it remains in the highest degree relevant to the issues that a decision-maker (whether the Secretary of State, or a representative seeking to advise a claimant) needs to take into account. On many questions, there is no country guidance at all, but that does not prevent the Secretary of State taking decisions, including decisions rejecting fresh claims and imposing certification under s 94. A challenged country guidance decision cannot be worse than no guidance at all. 35. The country guidance system has been endorsed by Parliament in s 105 of the 2002 Act (as amended), and by the Court of Appeal, and appears to be regarded with the highest respect by the Courts in Strasbourg and Luxembourg. That is not to suggest that individual country guidance decisions are infallible, but it is a good reason for supposing that it would be undesirable to render it wholly ineffectual. But the claimant's submission would, if accepted, have that effect. Whenever a decision was under challenge nobody would be entitled to rely on it, however reliable it might otherwise appear to be, until the challenge was resolved and (if necessary) further guidance had been given – which might itself be subject to challenge. That cannot be right: it is both unnecessary and wasteful of resources.” I would endorse these remarks.

The operation of CPR 52.7 in relation to Country Guidance determinations

[51]I unhesitatingly reject Mr Knafler’s submission as to the effect of CPR 52.7.[52]In the first place, the words “order or decision of the lower court” in CPR 52.7 refer to the operative part of the order made by the lower court, not the findings of fact or determinations of law in its judgment that led to its order. The law is accurately, and I think uncontroversially, set out at paragraph 52.0.13 of the White Book:
“Appeals are against orders, not reasoned judgments Section 16 of the Senior Courts Act 1981 provides: “Subject as otherwise provided by this or any other Act … the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.”
Accordingly appeal lies against the order made by the lower court, not against the reasons which that court gave for its decision or the findings which it made along the way. Thus a party who has been wholly successful in obtaining or (as the case may be) resisting the relief sought cannot appeal against the judgment, in order to challenge findings made: Lake v Lake [1955] P 336 CA (a decision based upon s.27(1) of the Supreme Court of Judicature (Consolidation) Act 1925, which, so far as material, was in the same terms as s.16 of the Senior Courts Act 1981). If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding…. …. A further consequence of section 16 of the Senior Courts Act 1981 is that no appeal against a judgment is possible unless and until the lower court makes the order which is foreshadowed by that judgment: Re Mathew [2001] B.P.I.R. 531.”[53]This principle is not without exception (see Morina v Secretary of State for Work and Pensions [2007] 1 WLR 3033) [2007] EWCA Civ 749), but I see no reason for there to be an exception generally applicable to Country Guidance determinations. A typical example of an order to which CPR 52.7 applies is an order for the payment of a sum of money, or an injunction. An example of a decision would be a decision that a person was being unlawfully detained, or a declaration that he be released. In HM, for example, the appeal of the appellants to the Court of Appeal was against the order dismissing their appeal against the determination of the First Tier Tribunal. In their appeal, they were of course entitled to challenge the findings of fact and law made by the Upper Tribunal, as well as its procedure, that resulted in its order dismissing the appellants’ appeal. It follows that in the absence of a specific declaration made by the Upper Tribunal in a Country Guidance determination, an appeal does not operate as a stay of any findings of fact made in that determination.[54]I think it significant that the Country Guidance Practice Direction refers not to a Country Guidance decision simpliciter being binding, but on the findings of the Tribunal “being authoritative on the country guidance issue identified in the determination”.[55]The second reason for rejecting Mr Knafler’s submission on the effect of CPR 52.7 is that it does not in terms require a stay of any order or decision of the Upper Tribunal (Immigration and Asylum Chamber). It does not do so, and does not need to do so, because, as Mr Blundell pointed out, an appellant seeking the reversal of a decision of the Tribunal is protected by section 78. If CPR 52.7 omitted paragraph (b), it would be misleading in the case of a person appealing from an adverse determination in his case. However, section 78 operates as a stay only in relation to a person whose own appeal is pending.[56]I also reject Mr Knafler’s submission that consistency and fairness require CPR 52.7 to be construed as he says it should be.[57]Consistency of decision is desirable, but it is not necessarily an end in itself. There may be good reason for a decision maker to make a decision that differs from a previous decision in a similar case. The most obvious reason is that the second decision maker considers that the first decision was erroneous. If it were otherwise, the Court of Appeal would be bound by decisions of lower courts in similar cases.[58]Moreover, consistency of decision is desirable only in cases that are materially similar. SG and OR are not in materially the same situation as the appellants in HM. SG and OR had the protection of sections 77 and 78 of the 2002 Act while their applications to the Secretary of State were pending and while their appeals were pending. Their appeals were finally determined (more than once) some time ago. They no longer have the protection of those provisions. The appellants in HM still have the protection of those provisions, because their appeals have not been finally determined.[59]In addition, I do not consider that fairness requires CPR 52.7 to be read as Mr Knafler submits it should. It is inherent in the Country Guidance system that only the appellants in a Country Guidance appeal are protected by sections 77 and 78. Whether others, whose applications for judicial review or whose appeals may depend on the outcome of an appeal against a Country Guidance determination, should have the benefit of a stay of removal pending the determination of that appeal must depend on the facts at the time of and the evidence put forward on their application for a stay. There is no unfairness in this. I shall consider the facts and evidence in the instant cases below.[60]It follows that the appellants were not entitled to automatic stays of their removal when they applied to the Administrative Court. Whether stays should have been granted in the exercise of the undoubted discretion of the Court is what I now turn to consider.

The decisions of Langstaff and Irwin JJ

[61]The decisions of the judges now under appeal must be considered without the benefit of hindsight resulting from the judgment of the Court of Appeal in HM, just as they must be considered without the benefit of the hindsight conferred by the fresh decision in HM.[62]Both Langstaff and Irwin JJ had to consider whether there was any realistic prospect of SG and OR respectively succeeding in their judicial review applications. SG and OR could not succeed if the findings of the Upper Tribunal in HM stood. The judges had before them the detailed and careful findings of the Upper Tribunal in HM. Pill LJ, when giving permission to appeal, had himself said that “The merits were … carefully considered”. Langstaff J knew that SG’s credibility had been rejected independently by two immigration judges. True it was that the Upper Tribunal in HM had not had the benefit of adversarial representation. However, Langstaff J knew that one at least of the appellants in HM had withdrawn his instructions from his lawyers because he had received an expert report that did not support his case. I think that both Langstaff and Irwin JJ were or would have been entitled to infer that the appellants in HM had withdrawn their instructions to their lawyers so shortly before the hearing because they considered that they had little or no prospect of success. True it was also that Pill LJ had said, correctly and presciently, that the Court of Appeal’s rulings on the procedural issues raised by the appeal might have an impact on the merits. However, he had not given any direction as to the authority of the Upper Tribunal’s determination pending the determination of the appeal. They were in my judgment right to consider the Upper Tribunal’s determination as authoritative pending the decision of the Court of Appeal. Langstaff J was entitled to conclude, as he did, that:
“There is no particular reason here for thinking that the whole basis of HM is undermined by what has taken place. In particular, I note that HM itself did carefully consider such information as the court had of the very nature which I am asked to say might make a difference.”
[63]On this basis, the judge was entitled to refuse permission to apply for judicial review and to refuse a stay.[64]Irwin J had the benefit of the judgment of Langstaff J in SG and, like Langstaff J, that of Mr Ockleton, sitting as a Deputy High Court Judge, in Qader. He concluded:
“16. Although difficulties clearly did arise in the course of the hearing which led to HM being firstly decided and secondly denominated a country guidance case, it seems to me important that Blake J and his colleagues were fully aware of the problems they faced and fully aware of the difficult conjunction of events. Had they had doubts as to whether it was appropriate to denominate HM as a country guidance case, then no doubt they would have held back from doing so. It is not merely that it is a country guidance case, it is a country guidance case which was decided in full knowledge of the problems which are now complained of; and yet the Tribunal felt it right to continue to describe it and denominate it as a country guidance case with all that that implies. No doubt in the course of the appeal which is impending those issues will be ventilated, but at the moment it seems to me that that is a strong consideration in the way that all judges should regard the effect of HM in particular. 17. Standing back from the broader issues, I remind myself that the question at issue here is: can it reasonably be said that it was unlawful for the Secretary of State to decide to return this claimant to Iraq, that decision being take on 6 December 2010? It seems to me the answer is no, and for that reason permission is refused.”
[65]In my judgment, Irwin J applied the correct test and reached a conclusion that was open to him.[66]In these circumstances, Mr Bowers QC was entitled to conclude that the Secretary of State had been entitled to consider that OR would be removed within a reasonable timescale when he was detained between 10 May 2010 and 15 November 2011, and therefore to refuse permission to apply for judicial review in relation to his detention.

Conclusions

[67]In my judgment a Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber) remains authoritative unless and until it is set aside on appeal or replaced by a subsequent Country Guidance determination.[68]The filing of an application for permission to appeal a Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber) cannot, of itself, justify the Court granting an injunction staying the removal of anyone whose removal is justified by that determination. However, if the judge considers that the evidence relied upon by the claimant may satisfy the test to which I refer below, it may be appropriate to grant a stay pending the decision of the Court of Appeal on the application for permission to appeal. In such a case, it may well be appropriate for the judge to suggest that the Court of Appeal expedite its consideration of the application for permission to appeal.[69]Whether the grant by the Court of Appeal of permission to appeal a Country Guidance determination justifies a stay in the cases of those seeking to challenge removal directions where the decision to remove them relies or is justified by that determination must depend on the facts and the evidence relied upon by the claimant. The facts will include the content of the determination and the reasons given for the grant of permission to appeal.[70]If the evidence relied upon was considered by the Tribunal, it is unlikely that a stay will be appropriate unless the reasons given for the grant of permission to appeal cast substantial doubt on the reliability of the findings of the Tribunal.[71]In relation to evidence other than that considered by the Tribunal, and in particular evidence of subsequent events, I would endorse the test formulated by Irwin J. The Court should not stay removal pending the decision of the Court of Appeal unless the claimant has adduced a clear and coherent body of evidence that the findings of the Tribunal were in error.

Disposal of the present appeals

[72]For the reasons I have given, I would dismiss these appeals.

Lord Justice Gross:

[73]I agree with the orders proposed by Stanley Burnton LJ, for the reasons he has given. I add only a very few words of my own as to Mr. Knafler QC’s submission that CPR 52.7 provides for an automatic stay of decisions of Country Guidance (“CG”) determinations which are the subject of an appeal – not only in relation to parties to that appeal but to all who may be affected by the CG in question.[74]With respect, the submission is untenable:(1) There is no juristic basis whatever for treating CPR 52.7 as having, essentially, in rem effect, not confined to parties to a pending appeal. The point is emphasised when regard is had to s.78 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which, in terms, operates as a stay only in respect of the person whose appeal is pending – not to non-parties.(2) An automatic stay of a CG determination, triggered by no more than a pending appeal and extending to non-parties, would gravely damage the utility of the CG system. This would be so where the automatic stay followed the grant of permission to appeal and, a fortiori, if the mere making of an application for permission resulted in an automatic stay.(3) The position of parties to a pending appeal cannot sensibly be equated to that of parties who have already and unsuccessfully exhausted the statutory appeals process. Such parties patently no longer enjoy the protection of ss. 77 and 78 of the Act. Consistency of treatment cannot therefore be invoked in support of an automatic stay.(4) Finality and an operative system of immigration control are important policy objectives; the submission would be destructive of both. Its reductio ad absurdum can readily be illustrated: if the mere fact of a pending appeal against a CG determination resulted in a stay of its operation – even against those who had already exhausted the statutory appeals process – there need never be finality; as soon as one appellant lost, another individual in the same broad category would apply for permission to appeal and so on.(5) Rejection of the submission does not mean that individuals are deprived of protection against the potentially irreversible and grave consequences of removal. It could hardly be said that the system currently moves with unseemly haste to remove a failed appellant. To the contrary, it is a striking feature of the law in this area that even after an individual has exhausted the appeals process, he has the opportunity to launch a “fresh claim” pursuant to para. 353 of the Immigration Rules and the protection against removal afforded by para. 353A, reinforced by the possibility of Judicial Review. These provisions serve to balance the interests of finality with those of the individual seeking to resist removal; no more is required in the interests of individual fairness and any more would seriously undermine finality.

Lord Justice Maurice Kay:

[75]I agree with both judgments and have nothing to add in respect of these particular appeals.[76]Country Guidance cases promulgated by the Upper Tribunal play an important part in the just disposal of future cases. When they become the subject of applications and appeals to the Court of Appeal, the ensuing delay can cause inconvenience and disruption to the normal throughput of other cases in the tribunal system. It is especially problematical if that delay is longer than it has to be. It is incumbent on this Court to do all it can to keep the delay to a minimum.[77]In future, when a Country Guidance case is the subject of an application to this Court for permission to appeal, the Civil Appeals Office will seek to ensure that it is dealt with expeditiously. The application will not be referred to a Lord Justice for consideration on the papers. It will be listed as soon as is practicable before one or more Lord Justices as an oral application for permission to appeal, on notice to the Respondent. If permission is granted, the Court will endeavour to make clear whether it is the whole of the guidance which will be reviewed on the hearing of the substantive appeal or only part of it. If the latter, the Court will identify which part or parts, as was done by Carnwath LJ in PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132, at paragraph 58. This should assist the tribunals and practitioners in relation to other pending cases. When permission to appeal has been granted, whether by the Upper Tribunal or by this Court, the Court will endeavour to arrange an early listing of the substantive appeal.[78]The previous paragraph has been seen and approved by the Master of the Rolls and the Senior President of Tribunals.

Cited in 31 later judgments

and 22 more of the most senior