WHEN A JUDGE MAKES A WRONG DECISION BECAUSE RELEVANT PAPERS (WHICH HAVE BEEN SENT TO COURT IN GOOD TIME) HAVE NOT REACHED THEM
The decision in Singh v The Secretary of State for the Home Department  EWCA Civ 1504 related to a case where a decision was made when the judge was not given relevant papers that had arrived at court.
“In my view, the fact that, when refusing permission to appeal, Sir Stephen Silber did not have before him important and compelling submissions from the Applicant – with most of which the Secretary of State apparently agreed – which had been filed properly and in good time, at the request of the court, critically undermined the proceeding”
The appellant appealed a decision refusing him permission to remain in the UK. A skeleton argument was lodged. The defendant Secretary of State accepted in correspondence that the appeal should proceed and a consent order was lodged dismissing the defendant’s application for a stay and the substantive application… to be referred for judicial determination”.
THE ORDER REFUSING PERMISSION TO APPEAL
The consent order did not reach the judge considering the application for permission to appeal. Permission was refused.
The application for permission to appeal was consequently still extant. It came before Sir Stephen Silber as a paper application on 11 March 2019. For the reasons I have given, the papers did not include the Applicant’s 19 December 2019 submissions. The judge dismissed the application; but, unfortunately, he did so in ignorance of the recent material including submissions and the stance the parties had taken with regard to (amongst other things) KO (Nigeria).
THE APPELLANT’S APPLICATION
An order refusing permission to appeal is regarded as a “final determination”
(a) it is necessary to do so to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
THE NATURE OF THE DISCRETION
“This is an exceptional jurisdiction, to be exercised rarely: “The injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation” (Lawal v Circle 33 Housing Trust  EWCA Civ 1514;  HLR 9 at  per Sir Terence Etherton VC, as he then was). The jurisdiction will therefore not be exercised simply because the determination was wrong, but only where it can be demonstrated that the integrity of the earlier proceedings has been “critically undermined” (R (Goring-on-Thames Parish Council) v South Oxfordshire District Council  EWCA Civ 860;  1 WLR 5161 at -); and then only where there is “a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined” (ibid at )”
THE DECISION IN THE CURRENT CASE
Perhaps the most surprising aspect of this case was the respondent’s attempt to oppose the application. In the event that opposition came to nothing.
On 10 June 2019, the Applicant made an application under CPR rule 52.30 to reopen the final determination of the appeal by Sir Stephen Silber on the ground that there was a real possibility that he had not considered key submissions of the Applicant, notably in the 19 December 2018 document, as evidenced by the fact that, in his quite lengthy ruling, the judge did not refer to any of these key submissions, including those in relation to KO (Nigeria). In particular, he made no mention of the fact that the Secretary of State had conceded that, following KO (Nigeria), the approach of Judge Jackson below was wrong in law. Indeed, he did not refer to KO (Nigeria) at all. On the other hand, the judge had referred to matters, such as the negative TOIEC findings, which the later submissions made clear were no longer being challenged. That too suggested that the judge had not seen the recent submissions.
As I have already indicated, the court file makes clear beyond all doubt that, when refusing permission to appeal, Sir Stephen Silber did not have before him the recent material to which I have referred. He did not know that the Secretary of State had – in my view, rightly, and clearly so – accepted that Judge Jackson’s approach to section 117B(6) was wrong in law, and was willing to consent to an order that the appeal be allowed and the matter remitted to the Upper Tribunal for redetermination. As a result, the judge failed to consider the effect of KO (Nigeria) on this appeal, properly or (apparently) at all. It is perhaps noteworthy that, he had no submission before him that that case had any effect on this claim or appeal.
In my view, the fact that, when refusing permission to appeal, Sir Stephen Silber did not have before him important and compelling submissions from the Applicant – with most of which the Secretary of State apparently agreed – which had been filed properly and in good time, at the request of the court, critically undermined the proceedings. Whilst it cannot be said that, if Judge Jackson had approached section 117B(6) properly, he would necessarily have allowed the Applicant’s appeal against the refusal of his application for leave to remain, there is a very good chance that on the evidence he would have done so. In those circumstances, the appeal was arguable. Indeed, in my view, the prospects of success on an appeal were high.
Although the Upper Tribunal had remade the decision on the appeal before the First-tier Tribunal coming to a different conclusion, before this court it was of course a second appeal to which the second appeal criteria of CPR rule 52.7(2) applied, i.e. permission could be granted only if the appeal had a real prospect of success and raised an important point of principle or practice, or there was some other compelling reason for this court to hear it. However, it seems to me that, although every case must turn on its own facts, it may be a compelling reason to allow a second appeal to proceed where, due to a misinterpretation of the law by the first appeal court/tribunal as recently clarified, there may be a high risk of the applicant’s article 8 rights being infringed. That is the case here; and, in my judgment, on the facts of this case that would provide a compelling reason to allow a second appeal to proceed. This is not a case in which the appeal should not be reopened because, if reopened, the Applicant would likely not be granted permission to appeal in any event. Indeed, the Secretary of State concedes that, if the appeal is reopened, the Applicant should be granted permission to appeal, a matter to which I shall shortly return.
In opposing the application, Mr Andrew Bershadski for the Secretary of State initially relied upon three particular submissions. First, he submitted that there was no evidence that the judge did not have the crucial new submissions before him. I have already dealt with that: there is no doubt that he did not have them. Mr Bershadski, rightly, did not pursue that submission before me. Second, he submitted that the circumstances of this case are not exceptional, and no injustice would be caused by refusing the application. However, (i) that important submissions were requested and then filed with this court, but not considered by the judge dealing with the relevant application, is exceptional; and (ii) there would in my view be real injustice in refusing the application to reopen, in circumstances in which, had those submissions been considered, the judge dealing with the application for permission to appeal may well have granted it. Third, he submitted that, if the appeal is not reopened, the Applicant would have an effective alternative remedy, because he is not facing imminent removal and it remains open to him to make a fresh application for leave to remain on human rights grounds. However, in all the circumstances, I am unpersuaded that it would be just to leave the Applicant to proceed on that course, when his appeal to this court has been wrongly dismissed at permission stage. It seems to me that such a new application may face hurdles that his current application, on appeal, does not.
That restores the Applicant’s application for permission to appeal. Although the parties were not agreed as to whether the appeal should be reopened, they were agreed upon the proper procedural course if it were, namely that permission to appeal should be granted, the appeal allowed, the decision of Judge Jackson of 6 July 2018 set aside, and the matter remitted to the Upper Tribunal for reconsideration of the appeal before it.
i) The Applicant’s application under CPR rule 52.30 be granted.
ii) The final determination and Order of Sir Stephen Silber dated 11 March 2019 be set aside.
iii) The appeal be reopened.