England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Southern and Deputy Upper Tribunal Judge Juss
Appeal Nos: IA/20092/2012; 1A/29094/2012; IA/29096/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/02/2014

Lord Justice Rimer :

1. This is a renewed application by three applicants for permission to appeal against a determination of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Southern and Deputy Upper Tribunal Judge Juss) promulgated on 22 May 2013 by which, for concisely expressed reasons, they held that the determination of the First-tier Tribunal (Immigration and Asylum Chamber) (First-tier Tribunal Judge Freer) promulgated on 25 February 2013 was not tainted by any error of law and must stand. That determination was that each applicant's appeal under the Immigration Rules and on human rights fell to be dismissed. The applicants are citizens of Bangladesh. They are ZI, who is 39, his wife, RA, and their daughter, TI, who was born in 2008. The parents also have two further daughters, born in July 2010 and February 2013 respectively, who are not applicants. Longmore LJ refused permission by an order on the papers on 20 September 2013.
2. ZI came here illegally in October 1995 on a passport to which he was not entitled. He was arrested in November 1995 and served with notice of removal. His claim for asylum was refused and he was removed to Bangladesh. He returned in 1996, again illegally, by again using a passport that had not been issued to him. In September 2000, he submitted an application under the Regularisation Scheme for Overstayers. As he had never been lawfully resident in the UK, he did not qualify and his application was refused on 11 July 2003 on the ground that he was an illegal entrant, not an overstayer, and so could not benefit from the scheme. The refusal was not, however, served on him until 2010, even though he and his representatives chased for information as to the outcome of the application.
3. RA came here in September 2003 as a visitor. She overstayed her visitor's visa as from 10 February 2004. She and ZI married in November 2006. TI was born on 12 April 2008.
4. On 8 February 2011, the respondent, the Secretary of State for the Home Department, refused ZI's application of 13 July 2010, also made on behalf of RA and TI as dependants, for leave to remain on the basis of long residence. In August 2012, however, the respondent agreed to re-consider the applicant's application, including that on behalf of RA and TI as his dependants. She then, however, refused it on 29 November 2012. The long residence category in the Immigration Rules made no provision for dependants, who had to satisfy the criteria in their own right and so the applications on behalf of RA and TI fell to be refused. As for ZI, the long residence requirements are in paragraph 276B of the Immigration Rules, but as he had never been lawfully resident in the UK, he did not qualify under them either, and his application was refused on the ground that he was an illegal entrant and could not benefit from the scheme. The refusal letter also explained why ZI failed to establish a right to remain on the basis of his family life. The refusal was accompanied by removal decisions in respect of all applicants. As regards RA and TI, they were made under paragraphs 8 to 10A of Schedule 2 to the Immigration Act 1971 on the basis that they were respectively the wife and daughter of ZI, who was being removed as an illegal entrant.
5. The applicants' appeals to the FTT, presented by Mr Shah, a solicitor, were based on the assertion that the respondent had not correctly assessed their case under article 8 of the Convention. Whilst the grounds of appeal referred to the failure to notify ZI of the refusal of his September 2000 application, no point was made that the failure was relevant to the proportionality exercise in considering the article 8 claim. The grounds of appeal also alleged that the considerations required by section 55 of the Borders, Citizenship and Immigration Act 2009 were not taken into account by the respondent.
6. The appeal failed. Judge Freer noted in [1] that it was expected that the appeals were to be argued under the long residence provisions of the Immigration Rules, but in the event that matter was no longer disputed. That was because it was accepted that the appeal could not succeed on those provisions. ZI had been served with notice of removal on 16 January 1998, so he did not satisfy the criteria under paragraph 276B. In [34], Judge Freer expressly took into account, in relation to the human rights appeal, the delay in notifying ZI of the outcome of his September 2000 application, and he concluded the paragraph by saying 'Looking at this in the round it will have to be a slightly favourable factor for the appellants, despite the hopeless nature of that particular application.' Whilst Judge Freer did not refer expressly to section 55 of the 2009 Act, he addressed himself expressly to the interests of the children in [44] to [47].
7. Designated Judge Lewis was persuaded that it was arguable that Judge Freer had misdirected himself on proportionality and granted permission to appeal to the Upper Tribunal, where the applicants were again represented by Mr Shah. The Upper Tribunal was unimpressed by the grounds of appeal, which were of a length equivalent to the determination under attack and obscure. It is, however, relevant that the grounds again included a reference to section 55 of the 2009 Act and questioned the FTT's consideration of the interests of the children and also made the point that the delay in notifying ZI of the refusal of his September 2000 application was material to the balancing of the human rights questions, and a reference was made to EB (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159.
8. The Upper Tribunal attempted to steer Mr Shah towards the advancing of an argument on the proportionality question, namely as to whether Judge Freer had given due weight to the various factors listed in paragraph 13 of the grounds, that being apparently the central basis upon Judge Lewis had given permission for the appeal. Mr Shah, however, asserted that he was entitled to advance an additional seven grounds of challenge, and was permitted to do so.
9. The Upper Tribunal considered the paragraph 13 factors, of which the third was the respondent's delay in notifying ZI of the refusal of his September 2000 application. They were satisfied that Judge Freer had left none of them out of account and indicated their view that the challenge to his decision on the human rights claim did not come close to identifying an arguable error of law. As regards the delay point just mentioned, the Upper Tribunal was correct that Judge Freer had taken it into account.
10. Mr Shah's next line of attack was to assert the making by Judge Freer of three errors of fact, said to be of sufficient importance to amount to an error law. The Upper Tribunal explained why there was nothing in the assertion and that the judge had made findings that were plainly open to him. In [20] and [21] of their reasons, the Upper Tribunal disposed of further factual points advanced by Mr Shah, which they described as unarguable and as having nothing in them.
11. The Upper Tribunal considered next the challenge to Judge Freer's approach to the applicants' arguments under paragraph 395C of the Immigration Rules, which required consideration to be given to various factors before the making of a removal decision under section 10 of the Immigration and Asylum Act 1999. The Upper Tribunal referred to the abolition of paragraph 395C but said that nothing could be said under it by the appellants, as ZI had never been granted any leave to remain and so the provisions did not apply to him.
12. The Upper Tribunal then said this:

'23. Nor can it be said that the judge was unaware of the delay in bringing to the appellants' attention the inevitable failure of the long residence application made by [ZI]. Similarly, contrary to that which is advanced by Mr Shah, the judge did have regard to the need to consider the best interest of the children as a primary consideration. But, as the judge noted at paragraph 47 of his determination, these are very young children who live in a family unit within a community of people from Bangladesh. He was plainly entitled to conclude, having reminded himself of the guidance in EA (Article 8 – best interests of the child) Nigeria [2011] UKUT 00315 (IAC) that their best interests were served by remaining with their parents who would be returning to Bangladesh.'

13. The reference in the first sentence must, I think, have been to ZI's application made in September 2000 rather than to his long residence application. The Upper Tribunal concluded by saying that the grounds of appeal failed to identify any error of law. The task for Judge Freer had been to make a fact-based assessment, which, having heard the evidence, he was in the best position to do.
14. The proposed appeal to this court is a second appeal to which the hurdles posed by section 13(6) of the Tribunals, Courts and Enforcement Act 2007 and The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 apply: that is, the appeal must either raise an important point of principle or practice, or there must be some other compelling reason for the Court of Appeal to hear it. If neither hurdle is surmounted, permission to appeal will be refused.
15. The grounds of appeal were prepared by Mr Hossain of counsel, who I presume was not previously involved in this case. The main point sought to be advanced is based on the respondent's admitted delay in notifying ZI of the 2003 refusal of his application to be regularised as an overstayer. What is said is that the delay in notifying ZI of the inevitable refusal must have resulted in initial uncertainty on his part as to whether he was to be removed, which over the years would or might have matured into a belief that if the authorities had intended to remove him they would have done so. As Lord Bingham of Cornhill said in EB (Kosovo) in relation to a delay of such a nature:

'15. … This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of the removal'.

16. Complaint is made that this factor was not taken into account by the FTT and the Upper Tribunal in weighing the proportionality considerations in relation to the applicants' human rights case under article. It was also said that there was a clear failure by the FTT to address the children's best interests in the proportionality exercise. It is said that the FTT failed to conduct an assessment under section 55 of the 2009 Act and by failing to give adequate reasons.
17. At the oral hearing, Mr Mustakim appeared for the applicants and provided me with a skeleton argument, which he elaborated in his oral argument. He majored on the two points advanced by Mr Hossain, primarily the first. The essence of his submission in that respect was that the Judge Freer in the FTT had not given sufficient weight to the effect on the applicants' article 8 case of the respondent's delay until 2010 in notifying him of the refusal of his 2000 application. That delay must have served to encourage a belief in ZI that he was not going to be removed, or else he would have been removed earlier, and so it was a very significant consideration to factor into the balancing exercise in the determination of the article 8 case. Mr Mustakim placed particular reliance on the observation of Lord Hope, at [27], that 'the balance in the appellant's favour is significantly strengthened by the fact that the explanation for the delay is so unsatisfactory'.
18. I do not, with respect, consider that Mr Mustakim's focus on that statement in Lord Hope's speech is representative of the essence of the decision in EB Kosovo. The House was not attributing to the type of delay in question a character that would make it decisive of the outcome of an article 8 inquiry, and the case was remitted to the AIT for reconsideration. Lord Bingham said, at [23], that the delay was 'relevant when considering the overall proportionality of ordering the removal of the appellant', and that it required a 'judgment in the round'. In making the statement that he did, quoted above, Lord Hope was impressed by the particular facts of the case. Lord Scott of Foscote was even more impressed by such facts, such that he would not have remitted the case to the AIT at all. Baroness Hale, at [32], was of the view that prolonged and inexcusable delay by the administrators must 'on occasion' be capable of reducing the weight normally to be given to the need for firm, fair and consistent immigration control in the proportionality exercise. She concluded by saying that:

'Where the aim has failed as spectacularly as it did here, the general importance which is normally attached to it must to some extent be diminished. But it still has to be weighed in the balance along with everything else.'

Lord Brown, at [82], whilst agreeing that the case must be remitted for rehearing, adopted a rather more qualified approach as to the impact of delay in the proportionality exercise when considering an article 8 case.

19. In my judgment, there is here no point meriting permission for a second appeal. Whilst Mr Mustakim submitted that an appeal would on this ground raise an important point of principle or practice, in my judgment it plainly would not. That the respondent's delay was of potential significance in the proportionality exercise was made clear by EB (Kosovo). Mr Shah made no reference in his grounds of appeal to the FTT to EB (Kosovo), but it is apparent that Judge Freer's observations in [34] of his judgment show that he was familiar with it, and his self-direction to himself that he had to look at the factor of the delay 'in the round' was the adoption by him of the very exercise that Lord Bingham had identified in [23] of his speech in EB (Kosovo). When it came to the Upper Tribunal, Mr Shah's prolix grounds did include a reference to that case, but the Upper Tribunal was, rightly, satisfied that Judge Freer had taken account of the delay in serving the decision on the 2000 application.
20. The EB (Kosovo) point does not therefore raise any new point. At most it goes to whether there is an arguable case that Judge Freer may have given insufficient weight to the delay point in the consideration of the article 8 claim. I am not convinced that it is even arguable that he did, or therefore that this is a case in which, on this ground, an appeal would have even a 'real prospect' of success, which is the threshold that is required to be crossed for first appeals. This, however, is a proposed second appeal. Permission cannot be given on this ground unless it provides a 'compelling' reason for an appeal. The discussion in PR (Sri Lanka) and Others v. Secretary of State for the Home Department [2011] EWCA Civ 988 shows that a high threshold has to be crossed in order to meet the demands of that criterion. The court must be satisfied that an appeal would have very high prospects of success, and that the decision under attack was perverse or plainly wrong. In my judgment, the applicants do not come close to making out such a case here.
21. Then it is said that there was a clear failure by the FTT to address the children's best interests in the proportionality exercise. It is said that the FTT failed to conduct an assessment under section 55 of the Border, Citizenship and Nationality Act 2009, failed to give effect to the principle of the centrality of the children as set out in ZH (Tanzania) v. Secretary of State for the Home Department [2011] 2 AC 166, and failed to consider the children's relationships with, as it is put in Mr Mustakim's skeleton argument, 'their grandparents, aunties, uncles etc'. As to the last point, the suggestion that there were any such relationships appears to find no reference in the material put before the tribunals below, although Mr Mustakim told me that the relatives had been at the hearings and had written letters that were before the tribunals.
22. In my view this ground of appeal is equally unsound. Again, it raises no important question of principle or practice. The principles are well known; the only question can be whether the tribunals below have properly applied them in considering the children's interests. As to that, the FTT addressed itself specifically to what was in the best interests of the children and came to a sound, adequately reasoned decision as to why those interests did not require a reversal of the respondent's decision to remove the family. I am not persuaded that it can reasonably be said that that decision was either perverse or plainly wrong or that there would be a very high prospect of success on any challenge to it. Again, therefore, there is no basis here for a second appeal.
23. I therefore refuse permission to appeal.