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
		16 February 2016

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal against a refusal of Upper Tribunal Judge Allen on 16 September 2014 to give permission to apply for judicial review of the Secretary of State's decision of 20 June 2013 to refuse to grant the Applicant leave to remain in the United Kingdom. The application to move for judicial review had earlier been refused on the paper application by Upper Tribunal Judge Coker on 24 July 2014.
2. I am grateful to Mr Baldip Singh who has striven valiantly to persuade me that this is a proper case to grant permission to appeal, but it seems to me that this is one of the more hopeless cases I have ever had to consider in this jurisdiction.
3. The only basis upon which this Applicant claims that she should be permitted to remain here is that she says that her son lives here and he is a British citizen. She says she has severed all links in her native country, Pakistan. The bare bones of the story are contained within a letter written on her behalf to the UK Border Agency on 7 November 2012 by her experienced solicitors, Malik Law Chambers, who write:

i. "Our client advised us that she came to the UK on a visitor's visa in 2005 and then reentered the UK in June 2007 on a visitor's visa. After the expiry of this visa she returned to Pakistan and then reentered the United Kingdom on 6 February 2009 on a visitor's visa. She then returned to Pakistan. She reentered the UK after this date on 10 May 2010 and returned on 2 October 2010. Her husband passed away two months after she returned on 8 December 2010. Her last entry to the United Kingdom was in May 2011 on a visitor's visa and she has continued to reside in this country since then without any absences abroad. She has no ties in the country where she came from and if asked to leave the United Kingdom she will have no one to return to. She has an established private and family life in the UK and will not be able to live without her son if returned to Pakistan. Over the period of her residency in the UK our client has established a strong private and family life. She has formed strong connections with the people in and beyond her community, which would be a violation of her legitimate expectation to remain in the UK as she has already so firmly settled herself here."

4. The bare facts are that in 2011 the Applicant was either 54 or 55, her date of birth being 1 June 1956. The son of whom she speaks, who was born on 12 August 1979, was 32. The Secretary of State determined, and there is no attempt to challenge that decision, that the Applicant failed to fulfil any of the requirements of rule 276ADE of the Immigration Rules and the Secretary of State also did not accept the allegation that she had no remaining ties in the country of her birth. The Secretary of State said:

i. "Having spent 54 years in your home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country. Therefore, the Secretary of State is not satisfied that you can meet the requirements of rule 276ADE(vi)."

5. The Secretary of State then went on to deal with the Article 8 claim in this way:

i. "It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the UK outside the requirements of the Immigration Rules. It has been decided that it does not. Your application for leave to remain in the UK is therefore refused."

6. That determination, like the determination of the Upper Tribunal, was of course given before the important decisions of this court in Singh and Khalid v Secretary of State [2015] EWCA Civ 74 and of even more immediate relevance, SS (Congo) and Others v Secretary of State [2015] EWCA Civ 387.
7. Mr Singh, to whose economical submissions I have already paid tribute, suggests that since the second of those decisions, SS (Congo), there is still a need for clarification as to what is the relevant approach or test when considering an application for leave to remain outside the rules.
8. In my judgment, there is no need for clarification because the test which is to be applied is that identified in paragraph 33 of the judgment of the Court of Appeal, that compelling circumstances would need to be identified to support a claim for grant of leave to remain outside the new rules in Appendix FM. The court pointed out that that is a formulation which is not as strict as a test of exceptionality or a requirement of very compelling reasons which applies in different circumstances, but nonetheless the test is one of compelling circumstances.
9. It seems to me that the bare facts relied upon which were placed before the Secretary of State in order to support this application fall hopelessly far short of what could be regarded as compelling circumstances. There is nothing more than the circumstance that this lady sadly has lost her husband in Pakistan and would wish to live in this country with her only adult child.
10. That, as I indicate, falls so far short of compelling circumstances that I am a little surprised that this application has been pursued since it was so comprehensively refused by Underhill LJ on the papers in June 2015. Underhill LJ, whose knowledge of these matters is unsurpassed, was a party to the decision both in Singh and in SS (Congo). He refused this application for permission to appeal on the following succinct grounds:

i. "Two grounds of appeal are pleaded, but in her clear and succinct skeleton argument the Applicant condenses them to one. That ground is, however, comprehensively undermined by the decisions in Singh [and he gives the reference] and as regards exceptionality, SS (Congo) [again, he gives the reference]."

11. I respectfully agree with Underhill LJ's formulation.
12. Whilst Mr Singh has told me that SS (Congo) is going to the Supreme Court and has repeated his submission or emphasised his submission that some clarification is needed, I have to say that I find it very difficult to conceive any test that would have the result that this Applicant would be granted leave to remain.
13. For all those reasons, therefore, I am quite satisfied that this is not an appropriate case in which to grant permission to appeal.