HN & SA (Afghanistan) (Lead Cases Associated Non-Lead Cases), R (on the application of) v The Secretary of State for the Home Department [2016] EWCA Civ 123 (3 March 2016)

This is an appeal from the Upper Tribunal (Immigration and Asylum Chamber) (McCloskey J and Upper Tribunal Judge Allen) brought by two Afghan nationals known in these proceedings as HN and SA. The appeal is against the dismissal by the Tribunal of a claim for judicial review brought by the appellants against the respondent Secretary of State in respect of decisions by her, under rule 353 of the Immigration Rules, not to admit as fresh claims for asylum representations made on their behalf by solicitors in March 2015. The decisions on those representations as challenged by the appellants were dated 1 April 2015 (in HN's case) and 23 and 31 March 2015 (in the case of SA). Permission to appeal from the Tribunal to this court was granted by Christopher Clarke LJ by order dated 19 August 2015.

Earlier asylum claims had been made by each appellant which had been rejected by the respondent and on appeal to the First-tier Tribunal in decisions dated (in HN's case) 30 September 2013 and (in SA's case) on 17 September 2014. Permission to appeal to the Upper Tribunal from the First-tier had in each case been refused.

Both HN and SA, and a number of other Afghan nationals whose claims to remain in the United Kingdom had been rejected by the respondent, were given directions for their compulsory removal to Afghanistan on a flight departing on 10 March 2015. Those directions prompted a number of claims for judicial review and for urgent interim relief staying removal, including the claims by these appellants. Stays of removal were granted.

At an early stage of the proceedings, pursuant to the President's directions by order of 10 April 2015, five "lead cases", including those of the present appellants, were selected for initial determination. The remaining non-lead cases were at that stage, it seems, to be considered after the Tribunal's decision in the lead cases. The procedural steps assumed some complexity. It is not, however, necessary to dwell upon them at any length as they are set out in the Tribunal's judgment at paragraphs 10 to 22. As a result, all the cases came before the Tribunal for "rolled up" hearing on 11 and 12 May 2015, i.e. for hearing of the oral permission applications with substantive applications for judicial review to be heard immediately if permission to apply were granted. In other words, the permission and substantive stages were "rolled up" into one single hearing and the matters were heard on the merits. The non-lead cases, notwithstanding their non-lead status, were formally before the Tribunal, as is clear from the fact the Tribunal dealt with them in the judgment.

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