You walk into court, lever arch folders tucked safely under each arm. You’ve tried to be organised and posted copies of your bundles weeks in advance. You’re part way through your submissions, furiously referring to this, that and the other whilst the judge is looking at you with a raised eyebrow.

Then you realise their table is empty. While it’s always possible that the judge has a photographic memory, chances are that the court staff have messed up and the bundles are sitting in a dusty corner of the admin office. Probably not an alien situation to be in – I’ve been there.

The recent case of Singh v Secretary of State for the Home Department [2019] EWCA Civ 1504 was basically a super-sized version of this situation.

The case had ping-ponged between the First-tier Tribunal and the Upper Tribunal and eventually made its way to the Court of Appeal. The appeals were mainly concerned with whether it would be “reasonable” for Mr Singh’s two British children to leave the UK with reference to section 117B(6) of the Nationality, Immigration and Asylum Act 2002. 

By the time matters came to the Court of Appeal, the Home Office agreed that the Upper Tribunal had erred in its approach to this point in light of KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53. Government lawyers accepted that the appeal should be allowed. The remaining dispute was what should happen next: should the Court of Appeal resolve the case or should the matter be sent back to the Upper Tribunal for a final decision?

At that point, the application for permission to appeal was still outstanding. Mr Singh’s lawyers sent in detailed submissions highlighting the agreement between the parties. But they never reached the judge, despite the administrative staff signing for the package containing the submissions. The judge ended up refusing the application for permission to appeal outright, in ignorance of the consensus that it should be allowed. 

This judgment was therefore about Mr Singh’s application under Civil Procedure Rule 52.30 to reopen a final determination.

In the court’s own words, this is “an exceptional jurisdiction to be exercised rarely”. The fact that the judge refusing permission had not referred to any of the submissions in the written arguments was what ultimately persuaded Lord Justice Hickinbottom:

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. 

Counsel for the government still resisted the application, arguing that the refusal of permission would not be unjust as Mr Singh could make a new application. I am rarely surprised by the Home Office arguing unmeritorious cases, but this was a whole different level. 

Despite that, a happy ending for Mr Singh: the case now returns to the Upper Tribunal for a third time.