England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		12 November 2015

LADY JUSTICE KING:

1. This is an appeal against the judgment of the Upper Tribunal, Immigration & Asylum Chamber of Judge Warr on 8 May 2014 whereby he refused permission to make an application for judicial review made by the proposed applicant in this case. The background of the case can be put shortly.
2. The proposed applicant is citizen of Pakistan, now aged 51 years of age. He is a married man with four children whose ages are from, I think, 9 to 24 years of age. The applicant arrived in the United Kingdom on 24 April 2008 aged 43 years of age, having lived all his life in Pakistan until then, he left behind close, immediate family. He arrived with his wife and his children and entered this country under a diplomatic visa in order to work as a driver in the Embassy at Bradford. The terms of that visa was that he had leave to remain in England until 24 October 2012.
3. However, on 15 June 2012, for reasons which are not relevant to this application, his employment was terminated, as a consequence, his permission to stay came to an end. Under the rules he had 90 days leave to remain during which time he would be able to make an application to remain indefinitely. That period expired on 13 September 2013 but, unhappily, no application had been made. The application was therefore made out of time on 24 October 2012.
4. The applicant applied for discretionary leave to remain on the based entirely on Article 8 family life, private life considerations, it being sensibly acknowledged on the applicant's part here today, that the rules which would have allowed indefinite leave to remain to be granted otherwise had not been satisfied. The notice of decision of refusal to grant leave to remain was served in the normal way in the normal format by the UK Border Agency in a letter dated 20 September 2013. The SSHD refused to grant the appellant leave to remain on the basis;

(i) That the applicant and his family were not British or settled and did not satisfy the rules.

(ii) There was no acceptance that the applicant had lost his ties to Pakistan.

5. Critical, it is submitted by Mr Ahmed on the applicant's behalf today, was the part of the decision letter which said that there were no exceptional circumstances involved in the appellant's application which would have led to an exercise of discretion allowing for leave to remain in the United Kingdom, notwithstanding the failure to fall within the rules. The decision also stated that further consideration could be given when the defendant would take enforcement action against the appellant which might in itself generate a right of appeal.
6. I say in parenthesis before I continue; Mr Ahmed, if I might put it respectfully to him, "floated" a new ground of appeal today on the basis that there had been no certification and so that gave the appellant different rights of appeal. However, as no removal notification has yet been given and that would be the point which activated certification he is wise, in my judgment, to not have pressed that aspect of his case.
7. The application to remain having been refused, unsurprisingly, the appellant filed grounds of appeal in order to press for judicial review or, at least at that stage, for permission. Those grounds, once again, focused on Article 8. The criticism of the determination and it is accepted by Mr Ahmed that this really lies in the heart of his application today, is that letter did not deal with the family circumstances in sufficient detail. I highlight a couple but this is not intended to be complete. In particular, he emphasised that the family had sold their family home in Pakistan and committed to purchase another property in the UK, that all the children are in education and one is now in university.
8. The grounds put forward in support of the application for permission to make an application for judicial review is that there effectively were no proper reasons and that it was unduly harsh to expect the family to return to Pakistan.
9. I should say for completeness, that the applications were made as a family, a group application, focussing on the circumstances as set out in the application made by the father, the present applicant, but each member of the family received individual notices of refusal.
10. The matter came before the Upper Tribunal in front of Judge Warr. He identified that, as is conceded, the family did not satisfy the rules. He then considered the issues of Article 8 and whether or not there were exceptional circumstances which would have led to the exercise of discretion to allow the family to stay notwithstanding that they did not otherwise fall within the rules. The judge considered exceptional circumstances specifically at paragraph 8 of his judgment:

"(8) The approach of the respondent has been the subject of a number of judicial decisions including MF (Nigeria) [2013] EWCA Civ 1192 and Nagre v Secretary of State [2013] EWHC 720 (Admin). However there appears to be very little exceptional about the circumstances of this family. The family came to this country with diplomatic status with the principal applicant working for the Pakistani Consulate. The posting was for a defined period. However the posting came to an end. It is in my view completely unarguable that the applicants had lost ties with Pakistan in the circumstances, not simply because of the fact that the principal applicant was employed by their home country's consulate but because on the face of the documentation the principal applicant refers to members of his family in Pakistan."

11. The judge concluded at paragraph 10:

"(10) It is argued that the question arises to what extent the respondent should reflect that all the circumstances have been given consideration when assessing matters. In my view that will vary from case to case and it does not raise an arguable legal challenge in this case where appropriate consideration has been given."

12. The matter was reconsidered on paper by Floyd LJ on 12 December 2014. Floyd LJ gave three reasons for refusing the application on paper, I read those in as follows:

"(1) It is not arguable that the decision of the SSHD was irrational. His [that is to say the applicant] diplomatic status was expressly temporary and his circumstances in no way exceptional. This ground overlapped with the applicant's other grounds and there was no reason for the UT to deal with it separately.

(2) There is no error of principle or otherwise in the UT's refusal of permission or assessment of Article 8.

(3) There is no dispute as to the existence of a discretion as the UT appreciated: the question was whether the SSHD was entitled to exercise it in the way she did. She was.

The appeal would have no real prospect of success and there is no compelling reason for the court to hear the appeal."

13. Turning then briefly to the grounds of the appeal as were settled, not by Mr Ahmed, but which had been refined by him in his arguments today. As far as ground 1 is concerned which suggested that the Upper Tribunal had failed properly to determine the ground of irrationality, for the reason given and just quoted by Floyd LJ, I would agree with Floyd LJ and there is no reasonable prospect of succeeding in an appeal on that ground. Ground 2 is that the judge in making a decision materially erred in respect of the overall case and the assessment of Article 8 and the conclusions reached. Ground 3 emphasises the residual discretion; those two grounds, effectively, have been rolled up by Mr Ahmed who says, first of all, the letter as drafted failed to exercise a discretion as was required at the second stage and secondly, that the lack of detail exhibiting a clear understanding and of the various details given by the applicant in his application and therefore undermined the decision-making process, rendering it unlawful and therefore permission to appeal should be granted.
14. Whilst Mr Ahmed has pressed those submissions, if I might say with great skill and in a most attractive way, there is in my judgment, no error of principle here and there is no real prospects of succeeding either on the discretion point or on the level of detail taken into account. I have looked carefully at the way the letter of decision is made and I fully accept, as Mr Ahmed showed me, that the detail is relatively limited. However, what is absolutely clear is that the Secretary of State did exercise discretion. It specifically says, "It has been considered whether your application raises or contains any exceptional circumstances". We have had some debate today about the difficulties posed to families, I would say, as well as lawyers and the court by the fact that the phrased used, "as exceptional circumstances" whereas, undoubtedly, the more appropriate phrase would be, "compelling circumstances".
15. I am afraid the discretion point simply does not, in my judgment, get off the ground. It is quite clear that the Secretary of State in accordance with Nagre has been conscious of the need to consider any compelling circumstances which, of course, is an exercise of discretion. In those circumstances I would dismiss the application for permission to appeal. The Secretary of State was aware of the circumstances, they were set out clearly within the application and there is no basis, in my judgment, to suggest that there was an error of law or an irrationality that either failure to set out all nine points, effectively, in numerical order.
16. I accordingly refuse permission to appeal.

Order: Application refused.