The Court of Appeal has allowed RS’s appeal and ordered that his appeal to the International Protection Appeals Tribunal (IPAT) be restrained until a related test case is determined in the High Court. The order concerns the hearing of the IPAT appeal; the Court of Appeal said no question of a stay pending any further appeal arose at this stage.
RS, an Algerian national, had received an adverse recommendation on his applications for refugee status and subsidiary protection, along with a decision not to grant him leave to remain. He lodged an appeal against the subsidiary protection recommendation to IPAT, while also pursuing judicial review proceedings. He contended that the examination of his protection application and consideration of his leave-to-remain application had been unlawful because they were carried out by a person engaged under a contract for services.
RS’s IPAT hearing was scheduled for 22 October 2018. He sought to have it postponed until a test case addressing the same legal issue was decided. He argued that if IPAT determined his appeal first, his judicial review could become moot, leaving him unable to benefit from a successful outcome in the test case. The High Court had granted a stay to the applicant in that test case but refused similar relief to RS and others.
The Court of Appeal considered the competing risk to RS’s ability to pursue his claim and the disruption a stay could cause to IPAT. Evidence before the court described 33 similar challenges at the time an affidavit was sworn, with 11 more cases granted leave the following week. The IPAT registrar warned that stays could delay a significant number of appeals, potentially for up to a year, and create a substantial backlog.
The Court accepted that a stay would disrupt the orderly processing of protection appeals. But it held that the High Court had given too little weight to the consequence for RS if IPAT decided his appeal before the test case: his judicial review would be spent, and he could not obtain a fresh first-instance determination if the test case established that the process was unlawful. The court said the test-case applicant had been granted a stay to avoid that result, and similarly situated applicants should remain able to benefit from the test case outcome.
The Court concluded that RS’s constitutional right to litigate, or to benefit from a successful test case, outweighed the disruption to IPAT. It allowed the appeal and granted an injunction restraining the IPAT hearing pending determination of the test case in the High Court. The judgment did not decide whether the underlying examination or consideration was unlawful.