Neutral Citation No. [2012] NICA 55	Ref:     	MOR8677	
			
Judgment: approved by the Court for handing down	Delivered:	12/12/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

BETWEEN

NM
Applicant

AND

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

BEFORE: MORGAN LCJ, HIGGINS LJ AND COGHLIN LJ
_______

MORGAN LCJ (delivering the judgment of the court)

[1]	The applicant seeks leave to appeal to the Court of Appeal from a substantive decision of the Immigration and Asylum Chamber (Upper Tier) made on 30 May 2011 that she should not be given leave to remain in the UK following an asylum claim and from that Chamber’s refusal of leave to appeal on 6th July 2011.  A single judge granted the application for leave on 1 September 2011 applying a threshold test of arguable merit. The Court of Appeal directed on 4 December 2012 that a fresh application for leave was to be made. Mr O’Donoghue QC appeared with Ms Connolly for the applicant and Ms Murnaghan for the respondent.  We are grateful to counsel for their helpful written and oral submissions.

Background

[2]	The 27 year old applicant from Bulawayo in Zimbabwe, came to the attention of immigration officers at Belfast City Airport on 24 October 2009 when she was about to board a flight to Manchester.  The flight was booked in the name of Miss N.  The applicant also carried a false identity card in that name.  She admitted that she was not Miss N and claimed asylum.

[3]	The applicant’s account was that she formerly lived at a Primary School, near the Llewellyn Barracks, Bulawayo, Zimbabwe.  Her mother left Zimbabwe in 2004 and is currently in the UK.  The applicant has a half brother, BC, who was a soldier who left the army in 2007.  Following this, soldiers started coming to the house the applicant shared with her grandmother.  They were looking for her brother because guns and information about ZANU-PF had gone missing and they suspected that BC had taken them to the MDC.  The applicant and her grandmother were beaten and on occasion, raped.  In December 2008, soldiers came to the house, beat the applicant and her grandmother and set the house on fire.  Her grandmother perished in the fire and the applicant was abducted by the soldiers.  She was beaten again the next day and dumped in the bush where she spent the night.  The applicant was rescued by a lady who came upon her and with whom she stayed for the following four months.  Thereafter, the applicant stayed for seven months with the pastor of the Apostolic Faith Mission whose congregation raised the money for her to travel to the United Kingdom where church members were to take her in.  She was provided with a passport and travelled to Belfast via Johannesburg, an unnamed Arab country and Dublin where she stayed for a few nights with some people who knew the people who had arranged her journey.  These people then drove the applicant to Belfast from where she intended to take a flight to Manchester.  The applicant did not seek asylum in any of the countries through which she had passed because she believed her mother was in the UK and the applicant had come to search for her.

[4]	In terms of the applicant’s relationship with her mother, at the screening interview on 24 October 2009 the applicant said she had no information about her mother’s whereabouts in the UK.  At the asylum interview on 15 February 2010 the applicant stated she had been to visit her mother in hospital on 25 January 2010.  The applicant made a witness statement on 23 April 2010 and in that she stated that she had been to see her mother on several occasions, the last being in January 2010.  When she had arrived in Belfast the applicant had not known of her mother’s whereabouts in England but had a telephone number for her.  With the assistance of the Bryson House One Stop Service she was able to find her mother.  In oral evidence to the Upper Tier the applicant said that the Red Cross had put her in touch with her mother and she had had no idea where to find her when she left Zimbabwe.  She repudiated what she had said in her witness statement about having a phone number for her mother.  The applicant was now in daily telephone contact with her mother.  The Judge found that the applicant’s account of the facts with regard to her asylum claim was a complete fabrication. In particular he rejected the suggestion that the applicant and her grandmother were beaten and raped.  There is no challenge to that conclusion.

[5]	In terms of Article 8 considerations, the Judge found the applicant’s account, which he considered unlikely to be true, that she had no contact with her mother between 1991 when she was 7 years old and 2010 when she visited her in Rotherham did not assist in establishing a relationship of dependency.  In Kugathas v The Secretary of State for the Home Department [2003] EWCA Civ 311 Sedley LJ examined the elements of family life between parents and adult children.

“But if dependency is read down as meaning “support”, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, “real” or “committed” or “effective” to the word “support”, then it represents in my view the irreducible minimum of what family life implies.” 

The judge found that the effort to establish a current relationship of dependency foundered upon any lack of evidence from the applicant’s mother as well as the fact that they were not living together. There was no family life for the purposes of Article 8.

[6]	The applicant applied to the Upper Tribunal for leave to appeal to the Court of Appeal and in that application informed the Upper Tribunal, inter alia, that her mother had been granted limited leave to remain in the UK for two years.  On 6 July 2011, leave was refused on the basis that the Article 8 claim foundered on the problem that the applicant lived in Northern Ireland while her mother lived in England and that no evidence had come from the mother to confirm the current state of the mother-daughter relationship.  That came nowhere near to establishing family life in Article 8 terms between a parent and an adult child.
 
The test for leave

[7]	The Appeal from the Upper Tribunal to the Court of Appeal Order 2008 sets out the test to be applied by the Upper Tribunal and the Court of Appeal in considering an application for leave to appeal to the Court of Appeal:

“2. Permission to appeal to the Court of Appeal in England and Wales or Leave to appeal to the Court of Appeal in Northern Ireland shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that—

(a)	the proposed appeal would raise some important point of principle or practice; or

(b)	there is some other compelling reason for the relevant appellate court to hear the appeal.”

[8]	It is clear that the test requires some degree of judicial restraint at a stage where an applicant has already had the benefit of two hearings on the merits.  Mr O’Donoghue focussed his appeal on the compelling reasons point. We agree with the observations of Treacy J in A and Others Application [2012] NIQB 86 dealing with this provision.

“[24] In PR Sri Lanka v Secretary of State for the Home Department [2011] EWCA 988 Carnwath LJ summarised the principles that emerge from Cart and Eba (paras 22-23) describing those judgments as “complementary and mutually supportive.”  The applications before the Court of Appeal were renewed applications for permission to appeal against decisions of the Upper Tribunal.  As Ms Connolly for the applicant acknowledged, this decision although not procedurally on point to the present cases, provided guidance on the second-tier test relevant to applications for judicial review of refusal decisions by the Upper Tribunal to grant permission to appeal to itself.  Carnwath LJ referred to the “compelling reasons” aspect of the test and said as follows (para 35): 

“Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception.  The prospects of success should normally be “very high”, or (as it was put in Cart para 131) the test should be one which “cries out” for consideration by the court.  The exception might apply where the first decision was “perverse or otherwise plainly wrong”, for example because inconsistent with authority of a higher court.  Alternatively, a procedural failure in the Upper Tribunal might make it “plainly unjust” to refuse a party a further appeal, since that might, in effect “deny him a right of appeal altogether”.  In Cart, Lord Dyson ….characterised such a case as involving “a wholly exceptional collapse of fair procedure (para 131).  Similarly, Lord Hope in Eba referred to cases where it was “clear that the decision was perverse or plainly wrong” or where, “due to some procedural irregularity, the petitioner had not had a fair hearing at all.  It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual.  However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test.  In other words, “compelling” means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments.””

[9]	The Senior Immigration Judge dealt specifically with Article 8 considerations at paragraph 27 of his Determination.

“All of this renders completely unbelievable the appellant's core account that she and her grandmother were beaten and raped, and her grandmother finally immolated in her own house, by soldiers looking for Private C.  There is no need to rely on inconsistency about the number of times the appellant was raped, about which there was much ado in the refusal letter and at the hearing.  The story is untrue from many other reasons.  As for Article 8, the appellant's insistence that she had no contact with her mother between 1991, when she was seven years old, and 2010, when she visited her mother in Rotherham, does not assist in establishing a relationship of dependency in Kugathas terms.  That version of events is, of course, unlikely to be true.  But the effort to establish a current relationship of dependency foundered upon the lack of any confirmation from the appellant's mother, as well as the obvious fact that the mother and daughter are not living together.  There simply is no family life for the purposes of Article 8.”

At paragraph 22 of his decision he had already found that the applicant must have known prior to leaving Zimbabwe where in the UK her mother was and would have been in contact with her.

[10]	The sole ground pursued by the applicant at the leave hearing was whether the judge had conducted the fact finding exercise in a manner compatible with the requirements of Article 8 ECHR as explained in Huang v Secretary of State for the Home Department [2007] UKHL 11.  Lord Bingham set out the necessary investigation for any tribunal when considering the task of the appellate immigration authority in that case at paragraph 15.

“[15] The first task of the appellate immigration authority is to establish the relevant facts.  These may well have changed since the original decision was made.  In any event, particularly where the Applicant has not been interviewed, the authority will be much better placed to investigate the facts, test the evidence, assess the sincerity of the Applicant's evidence and the genuineness of his or her concerns and evaluate the nature and strength of the family bond in the particular case.  It is important that the facts are explored, and summarised in the decision, with care, since they will always be important and often decisive.”

[11]	Mr O’Donoghue submitted that the consideration of Article 8 in paragraph 27 was cursory.  There was no finding as to whether the judge accepted the evidence about the number of visits the applicant had made to her mother in England.  There was no indication whether the judge accepted that daily telephone calls were being made.  It was unclear from paragraph 24 if the judge accepted that it was the intention of the applicant to travel to England to live near or with her mother if she succeeded.  Other evidence suggested that she intended to join the workforce in Northern Ireland.  The applicant alleged that she had lived with her grandmother since 7 and had not seen her mother until 2010.  The judge did not indicate whether he accepted that evidence. These were the matters upon which the single judge focussed.

[12]	We accept that there is some uncertainty about the facts found by the judge.  The applicant had to acknowledge, however, that in the period between the 1991 and 2010 the evidence at its height could only sustain the proposition that there was some contact between the applicant and her mother while the applicant was in Zimbabwe and the mother in the UK.  No evidence of dependency between mother and daughter was adduced and no material upon which to base future dependency was established.  As the judge pointed out there was no evidence at all from the mother touching on any relationship of any kind with the applicant.

[13]	We consider, therefore, that there was no basis on the available material for any conclusion that the applicant had established family life upon which she could pursue this appeal even if one applied the arguability test applied by the single judge.  We consider, however, that the correct test is that set out at paragraph 7 and explained at paragraph 8. Applying that test we must refuse leave to appeal.