Annmarie Smalling-Small v Home Office West Midlands [2025] EWCA Civ 1107

[2025] EWCA Civ 1107Case No CA-2024-002683-B
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON AN APPLICATION TO SET ASIDE
A LIMITED CIVIL RESTRAINT ORDER
MADE BY LORD JUSTICE LEWIS
IN THE COURT OF APPEAL ON 29 JULY 2025
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14 August 2025
Before
LORD JUSTICE LEWIS
Between
HOME OFFICE WEST MIDLANDSRespondent
The Applicant appeared in person for in person for The Respondent did not appear and was not represented.Hearing Hearing date: 13 August 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 14 August 2025 by release to the National Archives..............................
[1]This is an application made by Ms Annmarie Smalling-Small pursuant to CPR 3.3(5) to set aside a limited civil restraint order made on 29 July 2025. An oral hearing was held by video link on 13 August 2025 to give Ms Smalling-Small the opportunity to explain in person why that order should not have been made, in accordance with the decision of this Court in Gopee v Crown Court at Southwark [2023] EWCA Civ 881 at para. 47.[2]Ms Smalling-Small made oral submissions at the hearing on 13 August 2025 setting out in a careful and, if I may say so, dignified way what it is that concerns her and why she wishes the limited civil restraint order to be set aside. In summary, Ms Smalling-Small explained that she should have focussed in her earlier applications on the human rights issues and not gone back and forth over earlier applications she had made. Her fundamental wish is to be able to defend the charges made against her in 2004 that she had entered the United Kingdom illegally or had overstayed. She was adamant that she had not entered the United Kingdom illegally or overstayed and explained her version of events. As I understood it, on a journey back to the United Kingdom, Ms Smalling-Small says that her passport was not stamped with a landing stamp but that was not her fault. She described the way in which an interview with an immigration officer was conducted, how she was detained in 3 jails or camps until released on 8 June 2004, and how she could not afford to pay for immigration advice after that time. She explained that there was an order prohibiting her removal without an appeal hearing but she was removed without a hearing. She explained how there were three attempts to remove her in 2004, describing each one. She explained how she was finally removed to Jamaica in handcuffs. Ms Smalling-Small explained about her family situation, the effect of what had happened on her and her family and on her education and employment. Before addressing those submissions, it is necessary to set out the background and to state again that this application is an application to set aside the limited civil restraint order made on 29 July 2025.

THE BACKGROUND

[3]As is clear from the previous paragraph, the background to the present application concerns events in about 2004. Ms Smalling-Small is a Jamaican national who had first come to the United Kingdom, it seems, at some time in 2003 on a student visa. An issue arose as to whether or not Ms Smalling-Small was an overstayer and was in the United Kingdom illegally and, if so, whether she should be removed from the United Kingdom and returned to Jamaica. The written chronology prepared by the applicant shows that she was detained on or about 5 May 2004. The papers supplied by Ms Smalling-Small contain an application for urgent consideration of a request for interim relief including bail and a stop on removal. That application appears to have been made on or about 27 May 2004. On about 28 May 2004 an order was made placing a stop on removal to enable the applicant to attend a bail hearing. In the papers, Ms Smalling-Small quotes from the court order and says it states “Stop Order on removal to attend bail hearing June 8, 2004 at Sheldon Court, 1 Wagon Lane, Sheldon, Birmingham”. A hearing took place on 8 June 2004 before a judge she describes as Justice Morris at Sheldon Court in Birmingham. The applicant says the application was granted. In context that must mean, in my judgment, that the application for bail was granted as the hearing was about whether Ms Smalling-Small should be granted bail.[4]The papers supplied by Ms Smalling-Small also contain parts of a claim form dated 28 May 2004 in which she applied for permission to bring a claim for judicial review. Section 3 of that claim form notes that the decision to be judicially reviewed was a notice to a person for removal. The date of that decision was given as 27 May 2004. The application for permission to apply for judicial review contained in the claim form of 28 May 2004 was considered by Collins J. on the papers. By an order dated 17 September 2004, Collins J. refused permission to apply for judicial review. In his observations, Collins J. said this:
“For the reasons set out in the Acknowledgment of Service, this claim is not arguable. The claim failed to include relevant material and does not put forward any grounds for concluding that there has been any error of law. Bail is refused. The Claimant can be removed forthwith.”
[5]The applicant was removed to Jamaica in about November 2004.

THE PRESENT PROCEEDINGS

[6]The present proceedings concern an order of Cranston J. made on 29 July 2016 and sent to the parties on 2 August 2016. It was made on an application to re-open the case. Cranston J. refused the application and certified it as being totally without merit. He made an extended civil restraint order. In his observations, he noted that the claim was issued on 28 May 2004 and permission refused on 17 September 2004. He noted that two other claims had been brought, one against a decision of 11 February 2009 of the Immigration and Appeal Tribunal refusing permission to appeal and another concerning a decision to remove the applicant where permission was refused on 4 August 2011.[7]Over 4 years later, on 20 December 2024, the applicant applied for permission to appeal against the order of Cranston J. of 29 July 2016. The basis of the application was that the order was said to be flawed as crucial documents and information had been withheld from the judge. That was based on an assertion by the applicant that she had been granted permission to apply for judicial review on 8 June 2004.[8]By order of 14 May 2025, I refused permission to appeal and refused an extension of time for filing an appellant’s notice. The reasons for that order should be read in full. In essence, I concluded that there was no evidence that permission to apply for judicial review had ever been granted on 8 June 2004. It was the application for bail that had been granted on that date. Secondly, I refused to extend time for the reasons given in the order.[9]By an application dated 20 May 2025, the applicant applied pursuant to CPR 52.30 for permission to re-open the order of 14 May 2025. That application was based on what was said to be fresh evidence which comprised in essence a series of documents submitted with the application. The material included references to the order granted on 8 June 2004, and commented that that order was not on the Administrative Court database. It referred to the 2004 judicial review claim form. It included references in documents prepared, it seems, by the applicant to Articles 3, 5 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and said that the removal of the applicant from the United Kingdom on 1 November 2004 breached the UK’s obligations under that Convention as there was a stop order on removal and she had been granted bail.[10]By order dated 19 June 2025, I refused permission to re-open the refusal of permission to appeal. Again, the order contains reasons which should be read in full. In essence, the criteria for re-opening a final decision in CPR 52.30 were not met.The new evidence did not substantiate the claim that orders made in June 2004 meant that she had been granted permission to apply for judicial review. It was clear that Cranston J. was entitled to conclude from the order of 17 September 2004 that permission to apply for judicial review had been refused. Indeed it was clear from the observations of 17 September 2004 that bail was refused and the judge made it clear that the applicant could be removed from the United Kingdom. There was no proper basis for re-opening the order of Cranston J. of 29 July 2016. I certified the application to re-open the refusal of permission as being totally without merit. The order records that I also considered whether to make a civil restraint order and decided not to do so for the reasons given in the order.[11]By another application made on 29 July 2025, the applicant applied for a second time for permission to re-open the order of 14 May 2025 refusing permission to appeal against the order of Cranston J of 29 July 2016. The basis for that application was different from the earlier applications. The applicant relied on section 9 of the Human Rights Act 1998. That section deals with claims under the Human Rights Act 1998 in respect of a judicial act. It was said that there was an ability to challenge a judge’s decision on human rights grounds. In her application she said that she was requesting “permission to reopen my case for compensation and damages resulting from unlawful judicial acts”.[12]The application continued by saying that under the Human Rights Act 1998, individuals can challenge judicial decisions on human rights grounds without necessarily needing to appeal the original decision first. It said that this meant that a separate claim for damages or other remedies could be pursued directly even if the original judgment stands. It referred to section 9 allowing individuals to bring a claim for damages in respect of judicial acts that are incompatible with Convention rights.[13]In so far as that application identified the judicial acts said to give rise to a claim under section 9, the applicant again repeated that she was arrested and charged with illegal entry and overstaying and spent nearly 2 months in jails, detention camps and Home Office holding cells on false charges. The applicant then goes on to say that two court orders – the 28 May 2004 order stopping removal and the 8 June 2004 which granted bail – are not on her records at the Administrative Court Office. That, she claimed made the orders of Cranston J of 29 July 2016 and of Collins J. of 7 September 2004 void and amounted to breaches – I take it by those judges – of Article 6 of the Convention and the Human Rights Act 1998 and gave rise to procedural unfairness.[14]I refused permission to re-open by an order made on 29 July 2025. I incorporated the reasoning in the orders of 14 May 2025 and 19 June 2025 into the 29 July 2005 order. In summary, in so far as the applicant was contending that there were orders granting permission to apply for judicial review, that is wrong for the reasons given in the two earlier orders. In so far the applicant was relying on section 9 of the Human Rights Act 1998, that concerned what the applicant said was a free-standing claim for damages in respect of a judicial act. The claim was that Cranston J. or Collins J. had allegedly breached the applicant’s Convention rights. But for the reasons given in the order of 29 July 2025, that claim did not justify re-opening the refusal of permission to appeal against the order of Cranston J. First, if the applicant wanted to claim that Cranston J. had allegedly breached a Convention right, that claim would have had to have been brought within a year – and it was not. The same would apply if the applicant had wanted to bring a claim in respect of the acts of Collins J. in 2004. Secondly, claims for damages for judicial acts have to be brought in the High Court. The applicant – on this aspect of the case – was not seeking to appeal the decision of Cranston J. refusing permission to re-open (which is the only matter this Court was dealing with). Rather, she would be claiming that Cranston J. had allegedly breached a Convention right. That free-standing claim for damages for a judicial act would have had to be brought in the High Court not by way of an appeal against the refusal to re-open an earlier case. The same would be true of any free-standing claim in respect of the decision of Collins J. I also certified the application to re-open as being totally without merit.

THE LIMITED CIVIL RESTRAINT ORDER

[15]Having certified two applications – the two applications to re-open the order of 14 May 2025 – as being totally without merit. I considered whether to make a limited civil restraint order pursuant to CPR 3.3(4) and 3.11 and Practice Direction 3C – Civil Restraint Orders. As is explained at paragraph 20 of Gopee, a limited civil restraint order is the narrowest, that is the most limited, form of such order that may be made. It restrains the person from issuing applications without the permission of a judge. Paragraph 2.1 of Practice Direction provides that the court may make a limited civil restraint order where a party has made 2 applications which were certified as being totally without merit. That applied in this case and I considered, therefore, whether to make an order. I decided that it was appropriate to make such an order in the present case. The applicant was using up considerable public and judicial resources and time to deal with unmeritorious applications. That was particularly unfair to other litigants – instead of time and resources being spent on dealing expeditiously with their cases, time and effort were being spent on dealing with repeated and totally unmeritorious applications being made by the applicant.

THE APPLICATION TO SET ASIDE THE LIMITED CIVIL RESTRAINT ORDER

[16]The applicant is entitled under CPR 3.3(5) to apply to set aside the limited civil restraint order. In her application notice and her written request, she asks that the order be set aside based on the fact that human rights violations were not addressed in previous decisions and a free-standing claim can be made challenging the human rights violations. In her request she sets out 8 alleged human rights violations. She concludes by saying that section 9 of the Human Rights Act 1998 states that an individual can challenge a judge’s decision in a free-standing claim and requests the limited civil restraint order be set aside to enable her to claim damages and compensation as per Article 5(5) of the Convention.[17]I have summarised the oral submissions made by Ms Smalling-Small at the hearing on 13 August 2025 in paragraph 2 above. The purpose behind the application was said to be to set aside the limited civil restraint in order to be able to defend the charges made against her against her in 2004 that she had entered the United Kingdom illegally or had overstayed.[18]First, these appeal proceedings concern an order of Cranston J. of 29 July 2016 refusing to re-open an order of Collins J. refusing permission to apply for judicial review. Permission to appeal was refused. Two subsequent applications for permission to re-open were refused and certified as totally without merit. The first application was based again on the claim that the applicant had been granted permission to apply for judicial review, and that Cranston J. was not told that and should not have made the order he did on 29 July 2016. For the reasons explained in my earlier orders, that application was misconceived. Indeed, I understood Ms Smalling-Small to recognise in her oral submissions to the court on 13 August 2005 that it was, in effect, a mistake to go over those matters again and she should have focussed on the human rights issue. The fact of the matter is, however, that Ms Smalling-Small did make an application for permission to re-open the refusal of permission on that basis and that application was totally unmeritorious. Dealing with that unmeritorious application did require time and effort, and the allocation of limited public resources, and diverted those resources away from consideration of the cases brought by other litigants.[19]The second application for permission to re-open, and Ms Smalling-Small’s oral submissions at the hearing on 13 August 2025, focussed instead on human rights issues. The application and the submissions need to be analysed carefully. The basis of the second application, as it appeared from the papers submitted with that application, was that it was a complaint about unlawful judicial acts – that is, acts done by either Collins J. or Cranston J. – which it was said gave rise to a right to sue for compensation under section 9 of the Human Rights Act 1998. For the reasons given in my order of 29 July 2025 refusing the second application was totally misconceived. Any claim for damages for a judicial act which was allegedly incompatible with a Convention right would have had to be brought(1) in the High Court(2) within a year of those acts. They were not. The attempt to use section 9 as the basis of an application to re-open the refusal of permission to appeal against the order of Cranston J. was totally without merit. That again required the allocation of resources, time and effort to dealing with another unmeritorious application made by Ms Smalling-Small and diverted resources, unfairly, away from other litigants who wanted their cases dealt with.[20]It is clear from the oral submissions made by Ms Smalling-Small at the hearing on 13 August 2025, that her fundamental concern is different. She believes that she was wrongly treated in 2004 when immigration officers decided to remove her from the United Kingdom. She believes that they were wrong to conclude that she had entered the United Kingdom illegally or was an overstayer. She believes that her treatment at the hands of certain immigration officers and her removal from the United Kingdom in November 2004 as she graphically described it “in handcuffs like a common criminal” was deeply wrong and a breach of her human rights which are protected by the Convention.[21]Those beliefs, however strongly held, do not in my judgment alter matters. First, the fact is that those events occurred over 20 years ago. If Ms Smalling- Small had wished to bring a claim for damages, she would have had to do so within a year of those acts occurring and she did not. Secondly, whilst she said that she wished to be able to defend the charges against her, the fact is that she applied for permission to bring a claim for judicial review alleging that the decision to remove her was unlawful – but permission to bring that claim was refused by Collins J. It is that decision which Cranston J. refused to re-open. Permission to appeal against the decision of Cranston J. has been refused. Attempts to re-open the decision and to litigate, or more accurately, to relitigate the lawfulness of what happened to Ms Smalling-Small in 2004 are doomed to fail. Any further applications to try to raise those matters would be bound to fail.[22]On that basis, I have considered again whether it is right to make a limited civil restraint order. I consider that it is right to do so. The fact is that the applicant has made repeated and totally unmeritorious applications to re-open proceedings when those proceedings have been concluded. There is no further avenue open to her to re-litigate about the matters in 2004 and any further attempt to do so would be unsuccessful. Litigation about those events is now concluded. In those circumstances, the applicant is using up scarce public resources and time. That is unfair to other litigants whose cases are delayed whilst time and effort is devoted to dealing with the repeated, and totally unmeritorious, applications made by Ms Smalling-Small. I understand that she feels deeply aggrieved by what she says occurred in 2004. However, that does not justify the making of repeated and unmeritorious applications to re-open matters that have been decided against the applicant and does not justify allowing her to be able to make such applications in future.[23]For those reasons I refuse the application to set aside the limited civil restraint order made on 29 July 2025. That order remains in place.