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Cite as: [2015] EWCA Civ 860

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		Neutral Citation Number: [2015] EWCA Civ 860
		Case No. C2/2014/0848

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

Royal Courts of Justice
Strand
London, WC2A 2LL

14th July 2015

B e f o r e :

LORD JUSTICE BURNETT
____________________

	THE QUEEN ON THE APPLICATION OF SAADAT ALI & OTHERS	Claimants/Applicants
	-v-
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant/Respondent

____________________

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____________________

Mr S Ahmed (instructed by Law Lane) appeared on behalf of the Applicants
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE BURNETT: This is a renewed application for permission to appeal against a refusal by the Upper Tribunal (Immigration and Asylum Chamber) to grant permission to apply for judicial review of a series of immigration decisions made on 3rd September 2013.

The applicants are a family, comprising Saadat Ali and his wife, Khurshid Bano, together with their three sons born respectively in 1985, 1991 and 1995. The youngest, Sohail, although an adult by the time the decision was made, was 17 at the time that the underlying applications were made and was studying for his A-levels.

The decisions of the Secretary of State to which I have referred related to applications for "limited leave to remain in the United Kingdom", advanced in a letter dated 19th February 2013 from Khans Solicitors.

There was a significant immigration history. Mr Ali arrived in the United Kingdom with his family in 2006 and he and they had valid leave to enter and remain until July 2011. There was then an application for leave to remain in the United Kingdom including in reliance on Article 8 of the European Convention on Human Rights. That was refused in November 2011. An appeal to the First Tier Tribunal was dismissed in December and, save in respect of his daughter, the appeal was thereafter dismissed by the Upper Tribunal in a determination dated 17th April 2012.

Although the letter dated 19th February 2013 contained two short paragraphs (in a letter which I should say was 13 pages long) which suggested that the applications included fresh representations under paragraph 353 of the Immigration Rules, those two paragraphs in fact contain nothing that really amounted to fresh representations. The focus of the letter was two-fold. First, there was reliance on a policy in that it was said there were exceptional circumstances which should prevent removal in the applicants' cases. In fact no decision to remove was made in September 2013; or since. Secondly, it was suggested that the removal of the family would breach their Article 8 rights. The form of the letter was curious, to say the least, because it suggested that the original consideration by the Secretary of State of the Article 8 issue was wrong even though the Secretary of State's assessment had been upheld by both the First Tier and Upper Tier Tribunals. Because the applicants had no extant leave when the applications were made, there was no right of appeal against the refusals of leave contained in the decision letters of September 2013.

Judicial review proceedings were issued in the Administrative Court but transferred in due course to the Upper Tribunal. Three grounds were advanced. First, it was suggested that the Secretary of State had failed properly to consider paragraph 276ADE of the Rules and its associated parts and the well-known jurisprudence relating to Article 8. Secondly, it was suggested that there was procedural impropriety because the Secretary of State failed properly to consider paragraph 353B of the rules. Thirdly, it was suggested that the decision was irrational. Permission to apply for judicial review was refused on the papers. It is the subsequent refusal at an oral hearing of 3rd March 2014 that is the subject of this application.

There appears to be something of a confusion in the proceedings because the relief sought was "a quashing order of the decisions of 3rd September 2013 to remove the claimants", but, as I have indicated, no such decision was made. Be that as it may, the application for permission to appeal to the Court of Appeal was stayed pending determination by this court of the appeal in Khanum, which considered a collection of cases relating to paragraph 353B of the Rules. Judgment in that case was given on 8th July 2014: [2014] EWCA Civ 957.

A large number of grounds are advanced in the notice of appeal relating to the Secretary of State's apparent failure to consider whether the material advanced in the application letter amounted to a fresh claim for the purposes of paragraph 353. That argument has not been pursued by Mr Ahmed who has appeared on behalf of the applicants this morning, and, if I may say so respectfully, for good reason.

Mr Ahmed accepts that the decision of this court in Khanum provides no help to the applicants in their claim, neither does any consideration of paragraph 353B.

The reality in this case is that the Secretary of State considered the applications afresh despite the then recent decision of the Upper Tribunal in her favour.

Mr Ahmed now takes two points. The first is that the Secretary of State has failed to take account properly of Article 8 issues, and in particular failed to consider the Article 8 issues outside of the Rules as is suggested is appropriate, at least in some cases, by the decision in the Administrative Court in Nagre [2013] EWHC 720 Admin, and as further explained in Oludoye in the Upper Tribunal, [2014] UKUT 00539 IAC.

Additionally, Mr Ahmed takes points on behalf of Sohail. They devolve really to two propositions: first, that the Secretary of State failed to have proper regard to section 55 matters relating to a child; secondly, that the decision in his case failed adequately to deal with a freestanding Article 8 claim based upon the fact that he was still in full-time education during his A-levels. In fact, by the time the decision was made Sohail was not a child and, as it happens, had completed his A-levels (happily successfully).

There is to my mind a real problem with any argument of that nature advanced on behalf of Sohail. The application made to the Secretary of State was based upon the proposition that he should be given leave to remain as a dependant of his father, no separate Article 8 claim was advanced. True it is that there was material in the letter to which I have referred that noted that he was in full-time education. Nonetheless, it is to my mind entirely unreal to criticise the way in which the decision was made, given it reflected entirely the way in which the application had been formulated.

Even though, as I have said, there are problems in the application in connection with the identification of the correct decision, the essence of this case, as argued by Mr Ahmed, is that the circumstances of this family are such that independent consideration relating to Article 8 outside the rules should have been given. He submits that consideration should be given to each of the points advanced in the application letter and that, even though it is readily accepted that none of the family qualifies under the Rules, this is one of the cases where it can be said that the Rules do not adequately reflect the Article 8 considerations.

It seems to me that to suggest that the circumstances of this family could possibly give rise to a successful claim reliant upon Article 8 is fanciful. All are adults and there is no reason why individually or collectively they should not return to Pakistan. For Article 8 purposes there is nothing beyond the fact that they have been here for some time which points in the other direction. In those circumstances the Secretary of State's consideration of the matter was entirely adequate and appropriate. In the father's case, and indeed in the cases of the adult children, there was some consideration not only of the Rules, but more generally of Article 8 issues. To my mind, the Upper Tribunal judge was right to refuse permission to apply for judicial review in this case and permission to appeal against his decision must be refused.