The Principles of Staying Proceedings in IJR

R (AO & AM) v SSHD (Stay of Proceedings – Principles) [2017] UKUT 168 (IAC) (28 March 2017)

You might be forgiven for thinking that only unethical people operating in the courts of Asia or Africa, where corruption reigns supreme, demand stays so as to frustrate the timely progression of cases. Courts clogged up with uncountable adjournments and stays are the hallmark of backward legal systems where those with more power habitually abuse the legal process. In reality the home office routinely uses the strategy of staying cases to gain the upper hand by delaying the timeliness of proceedings in order to frustrate the turning of the wheels of justice and uproot the rule of law. The present proceedings are protracted and these cases involve complex questions of refugee law. But the principles imparted in this presidential guidance are of very high value to anyone who has an interest in immigration judicial review (IJR). Even in straightforward everyday matters, which are not plagued by excessive complexity, those representing the secretary of state have a habit of asking for time to be extended for 35 days so that they can “take instructions” in order to file detailed grounds of defence. Usually no copy of an application to extend time will be served on the applicant or her representatives. Such outlandish behaviour is a regular feature in IJR cases.

Another extraordinary tactic is to demand a stay so that the hearing date is vacated and a listed case can be forcibly put behind a supposedly important case; the details of which are deliberately withheld. In such an environment, it is refreshing to learn that the stays sought by the home office in these proceedings were refused. Mr Justice McCloskey (President) held in these cases that UTIAC has the same power as the High Court to stay proceedings. The power is discretionary and its exercise is normally regulated by the important factors in the overriding objective. Moreover, great caution needs to be exercised if a stay application contends that the outcome of another case will significantly influence the outcome of proceedings. Furthermore, especially compelling justification will be needed to stay a case warranting urgent judicial decision-making. Finally, judicial priority must be given to unaccompanied teenagers suffering from serious psychological trauma seeking expedited family reunion.

Factual Background

This decision arises out of proceedings linked to the notorious “Calais Jungle”. AO, who turned 18 in March, and AM, who is aged 16, are both Eritrean. Their cases were lodged with five other similar claims. AO’s case is argued as being very compelling and extremely urgent. He has been diagnosed with PTSD and seeks to join his brother AMO who is resident in the UK and holds refugee status. AO has been trapped in bureaucratic red tape because of investigations about his brother. The home office refused to transfer him to the UK under the expedited Dublin III Process. A stalemate exists in his case despite a high probability of irreversible damage to his mental health because of continuing delay.

AM, an orphan, wishes to join his uncle who is resident in the UK with refugee status. AM suffers from PTSD and a major depressive disorder. His medical expert’s opinion in his case places him at a high risk of suicide and predicts a deterioration of his mental state if prompt reunification does not take place. His entry to the UK under the expedited Dublin III Process was rejected on the generic ground of “family link not accepted”.

Both applicants sought mandatory orders requiring their immediate admission to the UK, orders quashing the decisions to refuse to transfer them under the expedited Dublin III process and declarations that the home office has failed in its duties to properly investigate their claim sand has acted unlawfully.

Applications to Stay Proceedings

The home office based its (failed) attempts to stay proceedings by demanding that the proceedings (i) should be stayed along with all other related proceedings behind the Administrative Court case of Citizens UK v SSHD (CO/5255/2016) as the issues in dispute are the same and (ii) alternatively that UTIAC should transfer this claim and all other claims raising the same issue to the Administrative Court so that all related claims can be case managed appropriately with reference to the overriding objective.

Generally the cowboys representing the home office do not even bother to provide a witness statement when asking for an extension of time or a stay. But at the very least, in these proceedings there was a senior lawyer’s witness statement accompanying the otherwise sloppy application. The dubiousness of the official’s evidence was reflected in his claim that staying proceedings was “the most sensible way of proceeding” because the need for judicial certainty and the conservation of limited judicial resources “militate very heavily in favour of a stay”. He also conveniently blamed AO and AM for their harsh predicament and stressed that it was open for them to claim asylum in France which would enable them to be accommodated and looked after over there. All this of course really relates to the government’s desire to be let off the hook for its failure to particularise a timely defence in the present cases.

AO and AM’s representatives firmly said that Citizens UK is a systemic challenge whereas the present challenges are individualised and fall to be determined according to the principles identified in ZAT and Others (Syria) [2016] EWCA Civ 810. It was said that a stay instigated by a generic claim by a charity – such as Citizens UK – seeking clarification of the law could trigger substantial delays in determining these claims and others in the cohort. The argument was fortified by the United Nations General Comment No, 14 (2013) which requires the courts “to provide for the best interests of the child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and must demonstrate that they have effectively done so.”

McCloskey J was intrigued by Fatima’s analysis that the exercise of judicial discretion is typified by a steady recognition of and respect for maintaining the UK’s treaty obligations, including those integrated in domestic law, and that this is vividly observable when judicial discretion is exercised in the sphere of injunctive relief.

The Citizens UK Case

Citizens UK instituted judicial review proceedings where permission was granted in an oral hearing and an expedited substantive hearing is scheduled for 23/24 May 2017. The case is characterised as “anxious, urgent and compelling” and points to the failures of the British/French partnership in the Calais Jungle, which of course was razed to the ground scattering its vulnerable inhabitants here and there. Subsequently, the home office failed to perform its duty to vulnerable asylum seeking children under the expedited process and their unsettled family reunification claims were not given properly consideration.

The grounds rely on the Managing Migratory Flows in Calais: Joint Ministerial Declaration on UK/French Co-operation which arguably gives rise to numerous legal obligations such as (i) identifying all the children in the camp, particularly unaccompanied children and to evaluate their eligibility for transfer to the UK (ii) supplying full and accurate information about the Dublin III regime to the children including the family reunification provisions and related available arrangements (iii) ensuring that they have safe accommodation allowing easy access to the arrangements and (iv) ensuring that safely accommodating them does not displace them from accessing the support network of the agencies and representatives involved in facilitating family reunification.

It is also argued that the duty of investigation and the duty of providing adequate and intelligible reasons for decisions are obligations that must be performed in line with Dublin III, the EU Charter of Fundamental Rights, the Human Rights Act 1998 and the Convention on the Rights of the Child 1989.

President’s Principles on Stays

After examining the provisions set out in section 49 of the Senior Courts Act 1981, section 25 of the Tribunals, Courts and Enforcement Act 2007 and rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008, McCloskey J analysed the principles in AB (Sudan) [2013] EWCA Civ 921 where CMG Ockelton had squarely refused to grant a stay of a judicial review application pending the possible appeal to the Supreme Court in EM (Eritrea) [2014] UKSC 12. It was clear from the overall content of those sources that:

(i) The Upper Tribunal has the same power as the High Court to stay proceedings.

(ii) The most important factors influencing the exercise of this discretionary power will normally be found in the overriding objective.

(iii) Great caution is required where a stay application is founded on the contention that the outcome of another case will significantly influence the outcome of the instant case.

Given the specific needs arising in the context AO and AM’s claims, he added two further points:

(iv) A stay application will require especially compelling justification in a case qualifying for urgent judicial decision.

(v) The cases of unaccompanied, isolated teenagers marooned in a foreign land suffering from major psychological trauma and seeking, via litigation, the swiftest reunion possible with a separated family member will always, in principle, have a powerful claim to judicial prioritisation.

McCloskey J stated that a balancing exercise needed to be performed against the components of the overriding objective for stay applications to be decided. Excessive cost and unnecessary expenditure of finite public resources and delays must be avoided, litigants must have expeditious recourse to justice and limited judicial resources must be efficiently allocated. Fairness, reasonableness and proportionality were all key principles underpinning the overall exercise.

AO and AM’s cases were “individual rights cases”. They could be distinguished from Citizens UK. McCloskey J accepted that more convenience, less expenditure and more comfort would result for the home office and its lawyers if the two cases were to be stayed in the manner proposed. Conversely, this comfort would come at the cost of sacrificing AO and AM’s right of access to justice in circumstances where they have a strong claim to “speedy judicial adjudication” with the consequence that:

28. … If they are entitled to a remedy it must be swift, practical and effective.

The distinction between the Administrative Court proceedings and these claims led UTIAC to reject any claims of substantial judicial overlap. Since McCloskey J found AO and AM’s “rights to be determinative”, he did not consider the factors relied upon by the home office to “singly or in combination, suffice to displace, limit or delay the full enjoyment of these rights in the fact sensitive context of these two cases.”

Comment

Not long ago, Holman J held in Yousuf [2016] EWHC 663 (Admin) that the practice of “staying” proceedings, sometimes for periods measured by years rather than months, hampers the efficient administration of the working of the review court. His Lordship stated that the orderly administration of the court system requires court officials “to be able clearly to identify that a case has come to an end, to draw a line under it, and to file away the papers” and he concluded that “significant number of stayed cases merely clutters that process.”

Moreover, when, for whatever reason, proceedings are stayed, in effect the court is declining to exercise its jurisdiction and that is a strong thing as Vaughan Williams LJ held in Shackelton v Swift [1913] 2 KB 304, CA at 312. Furthermore, as Potter LJ held in Abraham v Thompson [1997] 4 All ER 363, CA that where no principled statutory basis or good reason for a stay is identified:

The starting point is the fundamental rule that an individual who is not under a disability, a bankrupt or a vexatious litigant, is entitled to untrammelled access to a court of first instance in respect of a bona fide claim based on a properly pleaded cause of action.

Slippery lawyers acting for the home office are constantly trying it on with demanding stays in all types of judicial review cases. It remains to be seen, but hopefully this helpful decision by the president will put an end to the ongoing insanity. One thing is for sure. The casual ethical standard applied to home office representatives by many members of the tribunal judiciary is diametrically opposed to the acute level of accountability and transparency that is expected of immigrants’ representatives.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Access to Justice, Article 8, Asylum, CFR, Children, ECHR, Eritrea, Families, Judicial Review, Stays, UNCRC and tagged , , , , , , , . Bookmark the permalink.

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