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
		17 February 2016

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal against a decision of Upper Tribunal Judge Rintoul made on 10 October 2014. Judge Rintoul on that occasion refused permission to apply for judicial review of a decision of the Secretary of State dated 14 February 2013.
2. The Applicant was born on 20 March 1979 and is a citizen of Kosovo. He travelled to the United Kingdom overland, arriving in 1999 where upon he claimed asylum. As Judge Rintoul points out in his judgment, it appears that that application was refused on 19 June 2000. It would seem that there was a second supplementary refusal in 2002 and indeed an appeal against a refusal of asylum on 16 April 2003.
3. After all that, the Applicant made representations through his representatives requesting consideration on human rights grounds. He challenged the Secretary of State's failure to review his case under legacy provisions. That, it would seem, is how the proceedings began. But as I have indicated, on 14 February 2013 his application was rejected. It is against that refusal of leave to remain that judicial review is sought.
4. Matters have developed during the course of the proceedings, just as they had developed during the long course of this Applicant's residence within the United Kingdom. It is, therefore, idle to look at the grounds of appeal as they stand, but Mr Becket Bedford, who has appeared for the Applicant this morning, has, with his customary clarity, explained to me that there are two live points on the basis of which he seeks permission to appeal.
5. The first is that he points out that on 13 August 2014, that is to say, therefore, two months before the matter came before Judge Rintoul, Upper Tribunal Judge Gill made a direction that within five days of the date of that order the Respondent Secretary of State was to serve on the Applicant and the tribunal a copy of the decisions made on 19 June 2000 and 6 November 2002.
6. The reason for that, as I understand it, was, as Mr Bedford points out, that the refusal of application for asylum in 2000 cannot by definition have taken into account human rights grounds as that decision preceded the coming into force of the Human Rights Act. As he acknowledges, the supplementary letter in November 2002 would potentially have dealt with the human rights aspect as it may have stood at that time, but he submits that it is unclear whether the Applicant received at that time a formal letter, normally a removal directions or a removal letter, which would have advised him that he had a right of appeal on human rights grounds.
7. The significance of that is that the 2013 decision is couched in terms of whether the representations made in 2010 were to be regarded as a fresh claim rendering them subject to the procedure dealt with in paragraph 353 of the Immigration Rules, whereas if there had been no previous decision then what the Secretary of State was doing in February 2013 would have been making a first or initial decision in relation to human rights matters which would have generated an automatic right of appeal.
8. Judge Rintoul dealt with this matter at paragraph 5 of his judgment. He says this:

i. "Dealing first with the Pardeepan point, whilst this is correct that there are only now produced two letters, one dated 19 June 2000 and one dated 6 November 2002, the former deals solely with asylum. It is not clear from that letter that any notice of decision was ever served which would have given rise to an appeal which was then under section 8 of the 1993 Act. The letter of 6 November 2002 is, however, more helpful. It refers to the inclusion of a one stop notice. It also references to a notice of appeal and says that they should be returned together with the reasons for appeal and the notice of decision. I consider that this is indicative that it is this decision and notice which gave rise to the appeal, which it appears took place and which was dismissed. I am not satisfied that it is arguable on the basis of the material before me that this did not occur and the appeal did not take place taking into account Article 8. On that basis, I consider that that ground is not arguable."

9. Mr Bedford points out that notwithstanding the manner in which the judge dealt with that point, there has been no explanation from the Secretary of State for the failure to produce the decisions of 19 June 2000 and 6 November 2002. I of course accept that that is the case, but it seems to me that it is likely that as a result of the passage of time those decisions simply cannot now be found.
10. In any event, as it seems to me, the judge has essentially dealt with this as a matter of fact. He has drawn the inferences, which seem to be irresistible, from the letter of 6 November 2002 which, whilst it may not have been the actual letter conveying the decision, nonetheless gave a clear indication that there was a right of appeal which indeed appears to have been pursued. That, as it seems to me, is a finding of fact by Judge Rintoul and that really is the end of the matter.
11. The second point on which Mr Bedford seeks permission to appeal is that he says that the human rights aspect of this application has never really been properly considered by the Secretary of State in that there should have been a proper balancing exercise taking into account proportionality. He submits that what is to be found in the letter of 14 February 2013 is not adequate in that in part it is a consideration of Article 8 considerations within the ambit of the rule and in particular rule 276ADE. Then insofar as there is a consideration of exceptional circumstances under paragraph 353B, that is an inadequate exercise in that it does not properly balance interests of proportionality.
12. He also points to the fact that this Applicant has now been in the country for a very long time. He was relying on the legacy argument which, had it been a good point, would have entitled him to remain after I think five or six years, but now of course it is accepted that he will not achieve that entitlement until he has been here for 20 years.
13. Mr Bedford also points to the fact that it took some three years for the representations, which were first made in August 2010, to be considered, although I note that those were supplemented by further submissions in August 2011 and in May 2012.
14. The difficulty with those arguments, as it seems to me, is that it is plain that one reason why this has all taken so long is because this Applicant simply failed to maintain contact with the Home Office or Border Agency. He failed to appear for his appeal hearing on 2 April 2003 against the refusal of his asylum claim and he subsequently failed to maintain contact. On 27 April 2010 the Border Agency wrote to those who were thought to be his representatives, Ben Hoare Bell solicitors, and received a reply of 4 May 2010 confirming that they were no longer representing the Applicant and had not been doing so since 2003.
15. The current application and the applications which were considered by the Secretary of State are not supported by any material at all which would give rise to a plausible claim under Article 8. As Mr Bedford puts it with his customary frankness, the human rights claim has not been fleshed out. The evidence upon which it is based for current purposes is at page 122 of the bundle and it merely states that, "Our client has lived in the UK continuously for 11 years". That is so, but of course for the entirety of that time his presence here has been precarious.
16. There has been no attempt made since last year to put forward any basis upon which a human rights claim could succeed. Whilst I understand and appreciate that this Applicant was relying on the legacy point, it was in February last year, as his advisers will have well appreciated, that that point became unavailable. There has, therefore, been a period of a year during which some evidence could have been proffered in support of this application.
17. Similarly, well over a year has elapsed since the decision of Judge Rintoul in the Upper Tribunal and nothing has been put forward which would give any indication that a human rights claim has any prospect of success.
18. As has been made clear in recent decisions, in particular Singh and the case of SS (Congo), it is not necessary for detailed consideration to be given to human rights aspects in circumstances where there is simply no material upon the basis of which a right to remain on that ground could be made out.
19. Whilst, therefore, I am grateful to Mr Bedford for explaining the basis upon which this application has been pursued, it seems to me that at the end of the day a reliance upon Article 8 has absolutely no prospect of success. Therefore, it is not appropriate that I should grant permission to appeal against the refusal of Judge Rintoul to give permission to apply for judicial review of the Secretary of State's decision.