England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2013] EWCA Civ 506

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		Neutral Citation Number: [2013] EWCA Civ 506
		Case No: C5/2011/2150

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
[APPEAL No: IA/01696/2010]

Royal Courts of Justice
Strand, London, WC2A 2LL

15th April 2013

B e f o r e :

LADY JUSTICE ARDEN
LORD JUSTICE SULLIVAN
and
SIR STANLEY BURNTON
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	SB (PAKISTAN)	Appellant
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

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(DAR Transcript of
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The Appellant appeared in person, assisted by a Litigation Friend, Ms K Joshi.
Mr W Hansen (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
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Sir Stanley Burnton:

This is an appeal by SB against the decision of Senior Immigration Judge Waumsley sitting in the Immigration and Asylum Chamber of the Upper Tribunal, his decision having been promulgated on 15 April 2011. The appellant is a citizen of Pakistan. She is the mother of a young four-year-old daughter, who is a British citizen. She is a British citizen because SB was married to a British citizen. The marriage fell apart and SB went back for a relatively short period to Pakistan, came to this country and then was effectively ejected by her husband and her husband's family from the matrimonial home. She applied for maintenance in the county court and the county court judge made an order for maintenance against SB's husband, in favour of the child, MA, and in favour of the appellant. That was in sums of £160 and £400 per month, but so far as the appellant was concerned it was payable only until she was given indefinite leave to remain and became entitled to state benefits, or her appeal to the Court of Appeal, to which I shall refer in a moment, is refused, at which point she is at liberty to return to the court to deal with the respondent's ongoing spousal payments.

It is clear from that order that the District Judge, District Judge Jones, was under the impression that the outcome of this appeal would either be the dismissal of the appeal and SB having to leave this country, or the grant of indefinite leave to remain. The District Judge was under a misapprehension. I say that for this reason: the basis of the original application to remain on the part of the appellant was first domestic violence, and secondly a claim to remain under Article 8 on the basis that if she had to return to Pakistan, her and her child's Article 8 rights would be infringed. The domestic violence claim was rejected, and there is no appeal from the dismissal of that part of the claim.

There remained the Article 8 claim. If that were to succeed, the result would be that the Secretary of State would be bound to make a grant of leave to remain in accordance with her policy for the time being. That policy is not to grant indefinite leave to remain in circumstances such as the present, but limited leave of 30 months. Of course, before the expiration of the 30 months' leave it is open to SB to apply for a further period of leave to remain, having regard to the fact that her daughter will by then have been reasonably settled in this country and may even have started school.

Be that as it may, in March 2012 the Secretary of State did grant the leave to remain which would be granted under the Secretary of State's current policy if the Article 8 claim were to succeed, that is 30 months' leave to remain. The Senior Immigration Judge dismissed the Article 8 claim. If this Court were to accede to this appeal and uphold it, even to the extent of deciding that the Article 8 claim should succeed, the result of that would be that the appellant would be granted the leave which she has already been given. In other words, her position would not be advanced. This court would not, and the Tribunal would not, grant her indefinite leave to remain, because it is not the policy of the Secretary of State in circumstances such as the present case to grant such leave. In a sense, the appeal itself has been based on a misapprehension; that is to say that success in the appeal would lead necessarily to a grant of indefinite leave to remain. But as I have sought to explain, that is not the position.

It follows, in my judgment, that there is no point in a court hearing this appeal. The appellant has been given that to which she would obtain if the appeal were to succeed. It is open to her before the expiration of the current period of leave to apply for further leave to remain, as I have indicated, and so far as maintenance is concerned the county court order provides in terms that she is at liberty to return to the court, and she will do so I imagine.

In those circumstances I would dismiss this appeal, not on the ground that the Article 8 claim is good or bad, but simply on the basis that it is academic.

Lord Justice Sullivan:

I agree that following on the Secretary of State's grant of 30 months' leave to remain under the parent route under the Rules in the decision letter of 11 April 2013, this appeal has become academic and I would dismiss it on that ground.

Lady Justice Arden:

I agree with both judgments, and wish to add an observation on an entirely separate point. On this application before us, SB has not been represented by counsel as she was in the Tribunal. She has instead had the assistance of Ms Joshi, who is a member of the Bar but who has not yet done pupillage. When the matter was coming before this court, Ms Joshi sent an email to my clerk saying that she would be representing the appellant and wished to point out that she required leave for that purpose. At the sitting of this court, Ms Joshi explained her position, although she had been asked to explain her qualifications in writing beforehand. She did point out that she was appearing pro bono for SB. In the circumstances, we agreed to hear her on the question whether or not this appeal was academic, leaving over the position should we have decided that the matter should go to a full hearing. Ms Joshi did appear before Longmore LJ, who gave permission to appeal, that is, permission to appeal before the Secretary of State made her most recent decision. Obviously, an application for permission to appeal is of an entirely different character to hearing the hearing of a full appeal, and Ms Joshi should not have assumed that because she had permission on that occasion that she would be given permission to conduct the full appeal.

In this sort of case, an appellant who has permission to appeal should apply to the Free Representation Unit to see if there is a qualified barrister who is prepared to take the case pro bono. I gather that step was not taken in the present case but it should be taken in the future case. And in the circumstances, while Ms Joshi has been able to deal with the application which we have heard, I wish to point to her that she should not automatically assume that she is entitled to represent appellants in the future and that she should seek permission, explaining the situation to the court.

Order: Appeal dismissed