In an oral decision in the case of R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC) given on 28 March 2017, the Upper Tribunal refused the Secretary of State’s application to stay the Judicial Review proceedings of AO and AM, two unaccompanied minors previously in the Calais Jungle, and who had been refused their transfer to the UK under the expedited Dublin III process.

In the decision Mr Justice McCloskey, President of the Upper Tribunal, offers very useful and interesting guidance on the principles to be followed in applications to stay proceedings pending the outcome of another, lead case.

Brief background of the case

AO and AM are both Eritrean nationals. AO was a minor for most of the proceedings, having turned 18 on 8 March 2017. He made an application to join his brother, a recognised refugee in the UK. AO was diagnosed as suffering from post-traumatic stress disorder, and as being ” … close to the limit of what he could bear in terms of flashbacks, anxiety, feeling unsafe and sleep deprivation“.

AM is a 16 years old orphan, who had made an application to join his uncle, also a recognised refugee, in the UK. He has also been diagnosed as suffering from a major depressive disorder and post-traumatic stress disorder symptoms. Both applications were considered under the expedited Dublin III process, but both were refused. Both applicants,  represented by Bhatt Murphy solicitors, had issued judicial reviews against the refusals.

Secretary of State’s stay applications

The Secretary of State applied for a stay of these proceedings, waiting for a determination on the case of Citizens UK v SSHD (CO/5255/2016). Citizens UK v SSHD is a Judicial Review brought by Citizens UK against the British government’s failure to effectively discharge their duties under the Dublin III Regulation to facilitate the transfer of unaccompanied child refugees to the UK .

In a hearing of 28 February 2017, the Upper Tribunal directed that an expedited substantive hearing be held on 23/24 May 2017.

Principles for staying proceedings

The Tribunal first confirmed that the Upper Tribunal has the power to stay proceedings (see §19).

Relying on the earlier case of AB (Sudan), the Upper Tribunal went on to list the following principles when deciding whether to order a stay of proceedings:

(a)           Every claimant is entitled to expect expeditious judicial adjudication. The strength of this expectation will be calibrated according to the individual litigation equation.

(b)           The judicially imposed delay flowing from a stay order requires good reason.

(c)            Judicial choreography whereby one case is frozen awaiting the outcome of another is justified for example where the assessment is that the latter will have a critical impact upon the former.

(d)          Great caution is to be exercised where a stay application is founded on the contention that the outcome of another case will significantly influence the outcome of the instant case.

To the above, the following principle is added:

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

The overriding objective

Applying the guidelines above, the Upper Tribunal concluded at paragraph 25 that:

Ultimately, the determination of these stay applications requires an exercise of balancing many of the ingredients enshrined in the overriding objective: the avoidance of excessive cost, the unnecessary expenditure of finite public resources, the right of every litigant to expeditious justice, the minimising of litigation delays, managing the interface and overlap between two judicial organisations, the allocation of limited judicial resources and, broadly, the convenience of all concerned. I must also weigh carefully the ages, vulnerability and plight of the two litigants. Furthermore, alertness to a broader panorama is essential since the determination of these two applications will clearly be influential in, though not automatically determinative of, the progress and case management of the five other live new cases which have been initiated in tandem with these. Fairness, reasonableness and proportionality loom large in an exercise of this kind.

At paragraph 28, the Upper Tribunal recognises the merit of the Secretary of State’s application, but ultimately rules against it:

I accept that it will be more convenient, less expensive and more comfortable for the Secretary of State and her lawyers if these two cases were to be stayed in the manner proposed. However, this would impose a limitation impacting seriously on the two Applicants’ right of access to a court, in circumstances where they have a compelling claim to speedy judicial adjudication. If they are entitled to a remedy it must be swift, practical and effective. Furthermore, given the distinction between the Administrative Court proceedings and these cases I reject the argument of substantial judicial overlap. Ultimately, I consider the aforementioned rights of the Applicants to be determinative. The factors advanced on behalf of the Secretary of State do not, 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.

In other words, even when staying proceedings might be more convenient and less expensive for the Secretary of State, “the right of every litigant to expeditious justice” may need to be prioritised. Of course, this case was particularly compelling, given the age and psychological state of the Appellants. However, it is a welcome reminder that the Secretary of State is not the queen in the Immigration and Asylum Tribunal, and individuals’ rights still outweigh her own convenience.

Source: R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC)