England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2013] EWCA Civ 211

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		Neutral Citation Number: [2013] EWCA Civ 211
		Case No: C5/2012/2381

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL Nos: IA/26103/2011; IA/26104/2011; IA/326106/2011; IA/26108/2011]

Royal Courts of Justice
Strand, London, WC2A 2LL

31st January 2013

B e f o r e :

LADY JUSTICE HALLETT
____________________

	FS (GHANA) & ORS	Appellants
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

____________________

(DAR Transcript of
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____________________

The Appellant appeared in person.
The Respondent did not appear and was not represented.
____________________

HTML VERSION OF JUDGMENT
____________________

Lady Justice Hallett:

The applicant, Mr S, and his wife and two children are all Ghanaian citizens. He came to the United Kingdom on a work permit and the members of his family are dependent upon him. He was refused indefinite leave to remain on the basis that the Secretary of State was satisfied he had failed to reveal his criminal convictions. He disputed any suggestion that he had acted deceitfully. Unfortunately for him and his family, the Immigration Judge comprehensively rejected his evidence and that of his wife in relation to a number of matters, including the risks they faced if returned to Ghana and in relation to the applicant's background.

Permission, somewhat generously in my view, was given to appeal. First-tier Tribunal Judge Davidge conducted an extremely thorough and comprehensive review of the case. Again unfortunately for the family, the applicant's evidence and that of his wife was rejected on all material matters. A consideration of the interests of their children featured prominently in the redetermination. The judge bore in mind all relevant factors and directed herself appropriately in law.

Nevertheless the applicant has applied for permission to appeal the redetermination, and I understand why. I understand his feelings and those of his wife and children. He has represented them all with skill and courtesy. I have done my best to analyse the arguments he wishes to put forward.

He applied both yesterday and at the beginning of this hearing for an adjournment, which I refused. The basis of the application was that he claimed his solicitors were in correspondence with the Treasury Solicitor trying to persuade the Secretary of State to change her mind about sending the family back to Ghana given that his eldest daughter, born in the UK, has now reached the age of seven. Reliance is placed on a so-called "seven year policy" in relation to children.

I refused the application. Leveson LJ had already dealt with a similar application, granted it and had given the applicant one last chance to put any new material before the court. The time expired and no new material was available. It was also not clear to me what the new material would add to the application for permission to appeal the judgment because this was an issue raised before First-tier Tribunal Judge Davidge. The issue that the eldest child was approaching the age of seven was very much relied upon by the applicant's then counsel.

As far as the grounds advanced by Mr S are concerned, they have been supplemented in writing by a skeleton argument written by a lawyer. However, no-one has attended to present those arguments on his behalf. I have therefore combined essentially those grounds and as I say done my best to assist My S in presenting them. The grounds come to this. One, the judge was wrong to reject the applicant's explanation as to why he did not disclose his convictions. He took me through the history of the matter, as he had done in writing, and explained to me that the judge was wrong to find that the non-disclosure was deliberate. He insisted it would simply not have been logical or sensible for him to attempt to deceive the Secretary of State deliberately. The second ground relates to the interests of the children. The applicant reminded me that his daughters were born in the United Kingdom. He insists they have an established family and private life here, particularly the elder child who, as I have already indicated, has now reached the age of seven. He informed me of problems in relation to their health and his wife's health. He informed me of their educational and community achievements and that he himself has done his best to contribute to the community, working for vulnerable children and adults and acting as a school governor.

He also attempted to resurrect an argument about whether or not the family would face persecution or ill treatment on return but accepted during the course of argument that really he could not do so. However, he did wish to place some reliance upon a the existence of the tribal custom which he and his wife oppose female genital mutilation. They fear pressure being put upon them to subject their children to the custom.

I have given this application, or these applications, technically, from each member of the family, earnest consideration, particularly in the light of the length of time that the two girls have spent in this country. I have also considered the impact upon them of going to Ghana if their parents are returned to Ghana. The applicant was anxious for various reasons as to what might become of them. They have not had their vaccinations for tropical diseases and the educational system in Ghana is very different. However, as I tried to explain to the applicant at the beginning of the hearing, I can only grant permission to appeal in a case like this if the applicant clears a high hurdle. He has to establish that there is an error of law of some significance before his is entitled to permission to appeal. He has done his very best, but in my judgment the application is in essence an attempt to appeal findings of fact, based on the evidence, for which reasons have been given, simply because they were adverse to him. Thus I am satisfied that the judge bore in mind all those factors he has urged this court to consider. The fact is that in performing the balancing exercise the judge has come down in favour of the Secretary of State.

For all those reasons, therefore, much as I sympathise with the applicant and his wife, I am forced to the conclusion that there are here no proper or arguable grounds of appeal to be presented to the Court of Appeal. Accordingly I must refuse this renewed application.

Order: Application refused