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)
(HIS HONOUR JUDGE KOPIECZEK)

		Royal Courts of Justice Strand London, WC2A 2LL
		22 July 2015

1. LORD JUSTICE UNDERHILL: The applicant is a national of Tanzania. He is now aged 39. He came to this country in March 2006 on a student visa, initially valid for 3 years but since extended to 28 October 2012. He has, however, not studied for some time, apparently as a result of a psychiatric condition following a assault on him in 2008.
2. In due course, the applicant formed a relationship with a Ms Sekwao. She is also a Tanzanian national. She came here in 2001 on a student visa, subsequently extended. She was later given discretionary leave to remain in December 2012. On 16 October 2013 that leave was extended until 16 October 2016. They had a daughter, born on 30 January 2008, and they were married in August 2011. They have now have another child, a boy, born on 18 July 2014.
3. On 15 October 2012, the applicant applied for a variation of his leave to remain as a parent. By a decision letter dated 16 March 2013, that application was refused and a decision was made to remove him under section 47 of the 2006 Act.

The applicant appealed. By a determination promulgated on 15 November 2013 Judge Martins in the First-tier Tribunal allowed his appeal. She accepted that he could not bring himself within the terms of Appendix FM, or indeed paragraph 276ADE, of the rules, but she held that his removal would involve a breach of his rights (and I think also those of his family) under Article 8 of the European Convention of Human Rights.

The Secretary of State appealed to the Upper Tribunal. By a determination promulgated on 28 February 2014 Judge Kopieczek in the Upper Tribunal held that the decision of the First-tier Tribunal was vitiated by an error of law. He re-made the decision on the basis of the First-tier Tribunal's findings of fact and dismissed the appeal.

The principal point argued by the applicant in the Upper Tribunal appears to have been that his wife and child had leave to remain until 2016 and that the only proportionate course was for him to be given leave to remain commensurate with theirs. If at the end of that period his wife and child were in fact given further leave to remain (and I think there would obviously have been a prospect of that, given the time that both by then would have been in the country), that would have been indefinite leave to remain and he could and should himself be given leave to remain as a parent with them. If, however, that did not occur they could all return to Tanzania as a family unit at that point. There was nothing to be gained in requiring the applicant to leave at this stage in circumstances when he might well be entitled to return in 2 years or so's time. There does not appear to have been a reference to the decision in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40: I do not suggest that the cases are identical but the submission was perhaps in that sort of territory.

Judge Kopieczek in a careful judgment did not accept that line of argument. He regarded it in effect as proportionate - I summarise - that the family as a whole should have to choose whether to leave with the applicant now - thereby, I would have thought, forfeiting the prospect of obtaining indefinite leave to remain - and the applicant leaving now on his own and suffering what he described as a "temporary separation".

The applicant's application for permission to appeal against that decision was refused on the papers by Jackson LJ. He now seeks to renew that application.

The applicant was at first unrepresented on the appeal although he had been represented by counsel in the Upper Tribunal, and the grounds of appeal are signed by him in person - although it seems from their terms as though he may have had at least some legal assistance with them. However, he subsequently instructed Abbott & Co as his solicitors. It appears that that they instructed counsel, Mr Charles Mannan, to appear on the renewal hearing. However, Mr Mannan did not lodge an advocate's statement in accordance with the relevant practice direction. That was a particularly serious omission in a case where there had not been professionally drafted grounds of appeal or skeleton argument (though I should make it clear that I am not to be taken as criticising Mr Mannan personally, having no information about what instructions he received). When yesterday the Civil Appeals Office chased for an advocate's notice for my assistance in preparing for this application they were told by Abbott & Co that Mr Mannan had returned the brief at short notice and also that counsel to whom he had returned it had, himself, returned it at even shorter notice as a result of a family bereavement.

It does not need emphasising that that is a very unsatisfactory state of affairs. Although Abbott & Co did provide the court with a summary explanation from which I have derived those facts, there is very little detail in it and insufficient appreciation of the difficult situation in which it placed the court. Their email said that their solicitor would attend the court to explain the position. I am now told that that was a slip and that what was meant was that newly instructed counsel would explain the position. However Mr Sayed-Ali of counsel, who was instructed at very short notice was not able to give any more detail than appeared in the email. Indeed such information as he was able to give me did not appear entirely consistent with it.

Mr Sayed-Ali lodged a one page advocate's statement this morning, the burden of which is that events have moved on since the decision of Judge Kopieczek because the applicant's daughter is now aged 7 and has made an application for leave to remain which is pending. He does not have a copy of that application but I have no reason to doubt what he has told me. He also told me that Abbott & Co had written to the Home Office suggesting that this was a material change of circumstances and that they should consent to the present appeal being stayed while the new situation was assessed. Again, he does not have a copy of that letter, but he tells me that there has been no response from the Home Secretary from the Home Office. I do not know when the letter was sent. (I should say for completeness that a similar point had been made in an undated document from Abbott & Co headed: "Additional grounds of appeal".)

In any event, however, those circumstances could not constitute a ground of appeal against the decision of Judge Kopieczek since they post-date that decision. If anything, they would be the basis for a fresh application by the applicant. I asked Mr Sayed-Ali to formulate the ground or grounds on which it was said that Judge Kopieczek had made an error of law on the basis of the material before him. He said, as I understand him that it came down to a single point: namely, that the Judge's assessment of the proportionality of returning the applicant was flawed, essentially by reason of the matters on which he had relied in the Upper Tribunal.

In those circumstances, in other words that the decision of Judge Kopieczek to reject that argument was wrong in law. He was not (perhaps understandably, in view of the late stage at which he was instructed) in a position to develop that point. It did not feature in his advocate's statement. There has been no reference to any authority or, as I say, any developed submissions. I do not feel that it would be in accordance with the interests of justice for me to reach a decision on the arguability of that ground in the circumstances which I have outlined. I am by no means convinced that it is arguable that Judge Kopieczek erred in the way alleged, but the point is one that I would nevertheless wish to hear properly developed and which I am not prepared to reject at this stage. It seems to me that the right course is to adjourn this application. It will be relisted with an estimate of 45 minutes as early as possible in the Michaelmas term before myself if available. I direct that the applicant lodge and serve on the Respondent, within 21 days of this order amended grounds of appeal and skeleton argument. I draw the attention of Mr Sayed-Ali, or whichever counsel is instructed for this purpose, to the reminder recently given by the Vice President, in Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493, about the form which grounds of appeal and skeleton argument should take. What is required in the grounds is a succinct summary, in pleaded form, identifying the error or errors of law alleged. To the extent that recitation of the background and the history is necessary - which usually need only be done in summary form, since we have the decisions below - the place for them is in the skeleton argument; and that is also where there should be any discursive development of the grounds of appeal and reference to authority so far as relevant.

The skeleton argument will need to identify the basis on which it is said that any appeal satisfies the second appeals test. The applicant has the advantage that this is a case in which the Upper Tribunal differed from the First-tier Tribunal. In certain circumstances that can be a factor satisfying the second appeals criteria, but it is not necessarily enough by itself - particularly since, at any rate as I understand it so far, there is no appeal against the decision that the decision of the First-tier Tribunal was flawed so that the Upper Tribunal was obliged to re-make it.

4. I direct that the Secretary of State lodge and serve on the applicant within 21 days thereafter a summary response to the amended grounds. I give her liberty to attend the adjourned hearing, but I do not require her to do so - that must be a matter for her decision.
5. Although this is not the reason for my taking that course, it does have the advantage that if - as to which I express no view - the fresh application made on behalf of the applicant's daughter requires a reconsideration, either as a matter of law or as a matter simply of common sense of the applicant's own position, as apparently has been suggested by Abbott & Co, the gap of two months or so will give the Secretary of State the opportunity to carry out that reconsideration.
6. I emphasise that I do not have a sufficient grasp of either the facts or the interlocking legal positions to express even a preliminary view as to the right course. But the Secretary of State may at least wish to consider whether it is not better for the positions of all four members of the family to be considered together, rather than to some extent piecemeal as has apparently occurred so far.