Case No: C5/2011/0837/0802
Neutral Citation Number: [2011] EWCA Civ 1561
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 15 November 2011

Before:

LORD JUSTICE LAWS

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Between:

	GN & SN (Congo Brazzaville)	
Appellant	
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SECRETARY OF STATE FOR THE
HOME DEPARTMENT	

Respondent	

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Mr T Hussain (instructed by Parker Rhodes Hickmotts Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment

Lord Justice Laws:

1.	This is a renewed application for permission to appeal against the decision of the Upper Tribunal, DIJ Dearden, dated 20 January 2011, upholding the decision of IJ Howard given on 8 March 2010 by which he dismissed the appellant’s appeal against the decision of the Secretary of State made in November 2009, refusing to vary leave to enter the United Kingdom.  The purported appellant GN is the adult daughter of SN.  On refusing to vary SN’s leave, the Secretary of State also served notice curtailing his current visitor’s leave and that of his wife and four minor children who had arrived in the United Kingdom with him on 15 August 2009.  Since SN was then liable to leave the United Kingdom he enjoyed a right of appeal under section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002.  Hence ultimately the application to this court.  However, in the case of GN, who also entered the United Kingdom on 15 August 2009, the Secretary of State, apparently by an oversight, did not in November 2009 curtail her existing leave which accordingly continued to inure for the time being, although the Secretary of State had, as I have said, declined to vary it.  In those circumstances GN was not then and there liable to leave the United Kingdom and so she enjoyed no statutory right of appeal under section 82(2)(e) against the variation.  That said, the Upper Tribunal has treated her case as if her appeal was properly constituted.  This point only came to light, as I understand it, when the Treasury Solicitor spotted it and wrote to the Civil Appeals Office on 6 September 2011 explaining the position.  In the result there is not, and never has been, any jurisdiction to deal with GN’s purported appeal.  I will return to this aspect of the case, but first it is convenient to address SN’s application for permission.  Permission to appeal to this court was refused on consideration of the papers by Elias LJ on 3 June 2011.

2.	SN and his family are nationals of Congo Brazzaville.  SN gave his date of birth as 2 November 1961.  As I have said, he and his family members arrived here on 15 August 2009.  They were then in possession of visitor visas.  SN’s visa was effective until 8 June 2011 and the others, including the adult daughter GN, until 27 January 2010.  SN applied for asylum, listing his wife and minor children as his dependants.  GN applied for asylum in her own right.  Those asylum applications and the tendered applications to extend their leave to remain were refused, as I have said, in November 2009.  They appealed -- or in GN’s case purportedly appealed -- and those appeals were dismissed by IJ Howard on 8 March 2010.  On 6 May 2010, SIJ McGeachy granted permission to appeal to the Upper Tribunal, essentially for an arguable want on IJ Howard’s point of legally sufficient reasoning.  The basis of SN’s asylum claim was explained by IJ Howard at paragraph 5 of his determination as follows:

"The basis of the first appellant's claim is that he has been and will, if returned, be further persecuted in his native Congo (Brazzaville) as a consequence of his political opinions.  In 1993 on his return to the Congo having studied in France he was recruited by the Cabinet of the Ministry of Industries as a consultant.  In 1995 he was employed as an advisor to the Ministry of Finance and Economy.  Whilst working for the second ministry he was nominated as Head of the Economic section of newspaper Les Temps a creation of the then president Pascal Lisouba.  In August 1996 following the seizing of power by Sassou Nguesso, the first appellant as a member of the previous government, albeit as an advisor, began to receive death threats.  After a brief spell as a refugee in Kinshasa the first appellant and his  family returned to Brazzaville believing that it safe.  Once there the first appellant set about rehabilitating himself by working for the new administration.  However this was only short lived and on the 22nd December 1999 the first appellant was arrested and detained.  While detained he was taken home where his wife was raped in his presence.  Four days after his initial detention he was released when a Colonel Mpara came to his cell, gave him CFA 10,000 and told him to go home.  The following day the first appellant fled to Kinshasa by boat.  It was from Kinshasa that he travelled to France via the Central African Republic.  Once in France he secured work with Horus Enterprises which took him back to Cameroon.  It was in Cameroon that his wife and children joined him.  He fled Cameroon when he learnt the Congolese government had sent a commando to Cameroon to eliminate its opponents which included the appellant.  He claims that during that period there was at least an attempt on his life.  H sought the protection of the Cameroon authorities.  The delays were such he did not pursue this.  The appellant continued to travel in connection with his work and when he returned to Cameroon on the 30 April 2009 he was detained in order to be removed back to the Congo.  The first appellant bribed the arresting officer to let him go.  On the 6 July 2009 he was sent on a mission to the UK.  He bribed an officer to let him through immigration control at the airport, but was ultimately unsuccessful in leaving the country.  He sought the assistance of a senior army officer who in return for CFA 5,000,000 advised him to leave at night on Afriqia Air as there was less security.  On the 14 August 2009 he and his family went to the airport and following payment of another CFA 500,000 bribe they were able to leave Cameroon.  They arrived in the UK the following day.” 

3.	GN’s claim was entirely dependent on her father’s.  IJ Howard observed  at paragraph 30 that:  

“Central to the appellant’s claim of persecution is his account of his involvement in the government of Pascal Lissouba.” 
 
4.	The IJ rejected that case.  The determination of the DIJ now sought to be appealed is largely taken up with a discussion of the applicant’s counsel’s criticisms of the immigration judge.  The DIJ found (paragraph 12) that the IJ, “... effectively rejected the contention that the principal appellant would have a political opinion attributed to him”.  

5.	At paragraph 15 he set out 12 findings of fact which he held had been made by the immigration judge.  He concluded at paragraph 16 that the immigration judge had not misdirected himself in law and he did not accept that the IJ’s determination did not “adequately explain why their appeals were dismissed”.  He also held (paragraph 18) that there was no error of law for failure to deal with the background documentation.  

6.	The first and major ground of appeal put forward is essentially to the effect that two documents which it is said go centrally to support the applicant’s case that he was an economic advisor to the government have not been properly considered.  They are an official passport, so-called, with a Shengen Visa in it, and a report of the Council of the Food and Agriculture Organisation of the United Nations showing SN’s name as a representative of Congo.  SIJ Freeman refused permission to appeal saying, with reference to the passport:

“Arguably this should have been dealt with, but there is no reference in the grounds to any record by the first instance judge or the designated immigration judge of the original passport being produced before either of them.”

He concludes by indicating that it did not seem to him that in the circumstances a basis was shown for a second appeal.

7.	The second ground is that there was no legally sufficient reasoning on the part of either the IJ or the DIJ to support the conclusion that SN’s “commercial activities” were political in nature, nor did they sufficiently engage with the background documentation.  Mr Hussain says that the passport -- and it may be the other document also, but at least the passport -- was before the tribunals below.  Refusing permission to appeal to this court, Elias LJ said:

“These are second appeals and therefore in each case it is necessary to demonstrate that there is some important point of principle or practice or some other compelling reason for the appeal to be heard.  I do not think these criteria are satisfied here.  The issue is essentially whether the judges below properly assessed and gave sufficient weight to certain material and whether the reasoning is adequate.  There is no point of principle raised at all.”

I agree with this.  

8.	The Second Appeals test is discussed by this court in PR & Ors [2011] EWCA Civ 988, in which judgment was handed down on 11 August 2001.  I will not lengthen this judgment with respect by setting the reasoning out in this permission application, but it appears to me that nothing in PR suggests that this might be fit for a second appeal.  The test is not, in my judgment, met.  

9.	There is in the circumstances no need to consider GN’s case further.  Had I been minded to grant permission to appeal in SN’s case I would have expected the Secretary of State to take administrative measures to ensure that in practice GN’s case was dealt with conformably with the outcome of her father’s appeal.

Order:  Application refused