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Avoiding real injustices: re-opening finally determined civil appeals

Written by
Ben Amunwa, Law mostly
Date of Publication:
13 September 2019

In a rare step, the Court of Appeal has granted an application to re-open an appeal where the judge deciding it did not have the right documents and the appellant had nowhere else to turn for a remedy against a Home Office family visa refusal.

Low on the bucket-list of Lord Justices of the Court of Appeal is the reopening of civil appeals in which a final judgment has been made.

But in the recent case of Singh v The Secretary of State for the Home Department [2019] EWCA Civ 1504, such an application, made by immigration barrister Alex Burrett, instructed by Lawise Solicitors, was successful. Although a public law case, many private civil lawyers may find some value it, particularly since successful applications to reopen are such rare events.

The law

Rule 52.30 of the Civil Procedure Rules provides that the High Court or the Court of Appeal can re-open a finally determined appeal [*] if:

(a) it is necessary to do so in order 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.

Litigants get one shot at a rule 52.30 application, which is normally paper-based. Any decision on the application is final.

This must be one of the narrowest of narrow legal tests to satisfy, and with good reason. There is a powerful need for finality in litigation: parties should not easily be able to exhume closed cases otherwise the system would be plagued by abuse.

The courts have held that it is not enough that the determinaton was wrong – it must be shown that the very integrity of the proceedings have been 'critically undermined' in a way that would have affected the outcome of the proceedings.

So what was the justification for re-opening the refusal of permission to appeal in Singh?

The gist

Mr Singh had arrived in the UK on a Tier 4 student visa in 2010, had overstayed by 2012 and subsequently married his Indian national wife with whom he had two children in the UK. The children were both British citizens owing to his wife's indefinite leave to remain. He then applied for for a visa based on his family life here. The application was refused on suitability grounds in 2015 as the Home Office alleged that Mr Singh had obtained an English language test certificate by cheating and using a proxy test-taker.

Mr Singh appealed. After a lengthy and protracted procedure, his appeal reached the Upper Tribunal who dismissed his appeal on the basis that his family life was outweighed by his own misconduct as alleged by the Home Office. At that point in time, the relevant authorities (as previously covered here), suggested that a parent's conduct could be taken into consideration when assessing whether it was reasonable to expect British children to leave the UK in order to follow their non-EEA national parents to their country of origin.

Three and a half months after the Upper Tribunal dismissed Mr Singh's application for permission to appeal, the UK Supreme Court gave judgment in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 as previously covered in this blog. The Supreme Court reversed the approach established by a number of earlier Court of Appeal cases and found that parental misconduct is irrelevant to the 'reasonableness' test.

Mr Singh therefore applied to the Court of Appeal for permission to appeal on the basis that the law applied by the Upper Tribunal was wrong and had been clarified in KO (Nigeria). The Court directed both parties to make written submissions on the effect of KO (Nigeria).

By an administrative mishap, the Court failed to provide the Judge deciding the application for permission to appeal (Sir Stephen Silber) with the appellant's skeleton argument. The Judge seemed unaware that the Secretary of State had accepted that the appeal against the Upper Tribunal's decision should be allowed. He dismissed the application.

On Mr Singh's rule 52.30 application, Lord Justice Hickinbottom found that Sir Stephen Silber was wrong to dismiss the application and that the proceedings had been critically undermined by the failure of the Court to furnish the Judge with the documents he had directed the parties to produce, none of which was the fault of the appellant or his lawyers.

The fact that Mr Singh could make a fresh application did not provide an alternative effective remedy to him as that process could pose other difficulties. There was a very good chance that, properly directed, the Judge would have allowed the appeal given the legal changes charted above.

Although Mr Singh's appeal was subject to the 'second appeals' test in CPR rule 52.7, there was a compelling reason for the Court of Appeal to hear it given the risk that the appellant's Article 8 right to family life was at risk of infringement due to the earlier Judges' misinterpretation of the law.

Comment

In effect, this case illustrates that one of the casualties of an immigration system that has been in constant legal flux over the years is certainty. Parties to litigation in such systems are less likely to achieve finality. As a cacophanous Brexit approaches and the instability of UK immigration controls goes into hyperdrive, we may yet see more cases like this where higher courts are asked to intervene to avoid serious injustices because of misinterpretations of law.

[*] in this context, 'appeal' refers to either a substantive appeal or an application for permission to appeal.