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)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 May 2015

1. LORD JUSTICE McCOMBE: This is a renewed application for permission to appeal from the decision of the Upper Tribunal of 16 December 2013, dismissing the appeal of the four Applicants, from the decision of the First-tier Tribunal of 22 May 2013 which in turn had dismissed the Applicants' appeal from a decision of the entry clearance officer at Dhaka in Bangladesh refusing the Applicants leave to enter the United Kingdom to settle with a UK-based sponsor.
2. The Applicants are all citizens of Bangladesh. They are a father, born on 20 July 1965, and three children born respectively on 28 April 1994, 2 June 1998 and 19 March 1996. The eldest two children are daughters and the youngest is a son. If I have done my calculations correctly, they are at the region of 20, 16 and 14 years old respectively.
3. They applied to settle in the United Kingdom with the sponsor who is the principal Applicants' wife and the mother of all the children. The wife and mother is a British citizen now some 42 years of age and she has three children of whom, again, the principal Applicant, the father in Bangladesh, is also the father. The first two of these children are twins born in Bangladesh and now aged, again on my calculations, about 14 and a further child born in the United Kingdom aged about 11. All three are UK citizens. There are two further children of the family in Bangladesh who are, as I understand it, adults and not parties to the proceedings.
4. The entry clearance officer refused the Applicants' application for entry clearance. In the case of the father, he did so for the inability on his part to comply with paragraph 281 of the Immigration Rules, as they then were, and in the case of the children, under paragraph 297 of the Rules.
5. The principal factual feature, and an unusual one, underlying the decision of the First-tier Tribunal and the Upper Tribunal was that the two groups based in the UK and Bangladesh respectively had not seen each other at all since 2003. The entry clearance officer found that there was no valid and subsisting marriage between the father and the mother and that the family as a whole failed to meet the relevant maintenance requirements under the Rules. So far as the children were concerned, the father was the main carer and the mother had no material involvement in the upbringing of them since 2003, so the clearance officer found.
6. The First-tier Tribunal found that the Applicants had failed on the evidence to show that the entry clearance officer had been wrong to refuse the application under the Rules. Permission to appeal to the Upper Tribunal was granted by the First-tier Tribunal, through a different judge, on 26 June 2013 on the grounds that the welfare of the children had not been expressly or properly considered at the time of the First-tier Tribunal hearing.
7. The appeal came before the Upper Tribunal on 17 September 2013. In its decision promulgated on 16 December 2013, the Upper Tribunal delivered a full analysis of the family circumstances. It concluded with conclusions on the broad aspects of family life in paragraphs 45 to 51, which in the new circumstances of the case, for reasons which will appear, it is not necessary to quote.
8. In the original grounds of appeal presented to the Upper Tribunal, it was submitted that the judge had failed to consider the best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009. The Upper Tribunal, again through a different judge from one who had heard the original appeal, refused permission to appeal.
9. On the present application, as Mr Malik who appears for the Applicants today correctly recognises, it is for the Applicants to show that the proposed appeal raises an important point of principle or practice or that there is some other compelling reason why a second appeal should be permitted.
10. Elias LJ in considering the original grounds of appeal found there was no prospect of success on the appeal, which perhaps was a generous way of approaching the old grounds because that is essentially the first appeal test.
11. Mr Malik, however, this afternoon does not rely on the original grounds of appeal, but advances a new point not previously made, which he has done carefully and succinctly in written and oral submission. The point so identified is put by Mr Malik as being:

"The developing jurisprudence as to the circumstances in which the Upper Tribunal is obliged to adopt an inquisitorial procedure and make further inquiries into an applicant's case over and above the material raised by the parties."

12. Reference is made to the well-known decision in SS (Nigeria) [2013] EWCA Civ 550 commenting on the case of Tinizaray v Secretary of State [2011] EWHC 1850 (Admin).
13. In SS the court commented on the dicta of Judge Thornton in the earlier case of Tinizaray concerning the court "of its own initiative" arming itself with the facts that where the possible deficiencies in the materials presented by the parties disables the court from making a proper decision.
14. Laws LJ in delivering main judgment of the court, with which the other members of the court agreed, took the view that the propositions broadly expressed by Judge Thornton in Tinizaray could not be objected to but nonetheless thought it would be very rare and in exceptional circumstances that there would be need for any inquiry into circumstances beyond those raised by the parties themselves before the court. Black LJ agreed with both judgments, being that of Laws LJ and of Mann J.
15. Mr Malik has drawn my attention to a decision of the President of the Upper Tribunal, McCloskey J, and of Judge Perkins in the case of MK (section 55 Tribunal options) Sierra Leone [2015] UKUT 223 (IAC). The passage which Mr Malik principally relies appears at paragraph 39 in the following terms:

"Our survey of the relevant jurisprudence, governing principles and statutory framework yields the following conclusions:

(a) Where either the FtT or the Upper Tribunal decides that there has been a breach by the Secretary of State of either of the duties imposed by section 55 of the 2009 Act, both Tribunals are empowered, in their final determination of the appeal, to assess the best interests of any affected child and determine the appeal accordingly. This exercise will be appropriate in cases where the evidence is sufficient to enable the Tribunal to conduct a properly informed assessment of the child's best interests.

(b) However, there may be cases where the Tribunal forms the view that the assembled evidence is insufficient for this purpose. In such cases, two options arise. The first is to consider such further relevant evidence as the Appellant can muster and/or to exercise case management powers in an attempt to augment the available evidence. The second is to determine the appeal in a manner which requires the Secretary of State to make a fresh decision."

16. It is not necessary to read the rest of that passage, which I have taken into account from Mr Malik's document.
17. It is to be noted that the trigger to the option of exercising case management powers is where the tribunal forms the view that the assembled evidence is insufficient for the purpose of making the relevant assessment under section 55. In my judgment, it is quite clear that this tribunal did not consider that the evidence before it was insufficient to exercise to carry out the necessary exercise. What it was pointing to was a deficiency in the evidence which was well within the Applicants' power to remedy.
18. In my judgment, there would not have been, on the findings made by the tribunal, any trigger of the case management powers that McCloskey J and Judge Perkins identify in MK.
19. In my careful consideration of this case, in which I am very grateful to Mr Malik for his submissions, it does not raise any important point of principle as the application of the inquisitorial powers, such as they may be, of the tribunal in such cases. It is simply that the tribunal was wholly unsatisfied by evidence capable of being introduced by these Applicants that the relevant criteria could be satisfied so as to demonstrate the necessary family links to enable entry clearance to be given.
20. In the circumstances, I cannot see that the second appeal criteria are established and accordingly, the application, carefully advanced though it was, is refused.