England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Upper Tribunal Judge Gleeson
JR/2514/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/03/2017

LADY JUSTICE THIRLWALL :

1. This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) of 12^th March 2014 refusing permission to claim judicial review of a decision by the Secretary of State for the Home Department (SSHD), set out in a letter dated 23^rd July 2013, refusing the appellant's application for leave to remain in the United Kingdom. Appeals by the appellant's wife and three adult sons were dependent on this appeal. The three sons now have leave to remain in the UK. Two daughters are settled in the UK; they are married to British citizens. The appeal proceeded on behalf of the appellant and his wife only.
2. The original grounds of appeals were expansive. Permission was granted on a single ground, that is whether in coming to her decision the Upper Tribunal judge failed to consider a relevant factor under Article 8 (this being a case where the appellant could not succeed under the Immigration Rules). The relevant factor is described on the appellant's behalf as an "historic injustice". It is the appellant's case that had the Upper Tribunal judge given proper consideration to that issue, she would have been bound to grant permission to claim judicial review and the Secretary of State would have been required in due course to reconsider the matter.
3. The grant of permission to appeal in February 2015 prompted the respondent to reconsider the appellant's position and a further decision letter was written on 6^th November 2015. As a result this appeal, listed for mid November 2015, was adjourned by consent. The appellant was given 28 days to review his appeal in the light of the letter. By paragraph 4 of the consent order it was ordered "if the appellant decides to pursue this appeal then he must file and serve amended grounds of appeal within 28 days of this order." The appeal is pursued. The document headed "Amended grounds of appeal" includes grounds for judicial review of the decision letter of 6^th November 2015. Those grounds were pursued in the amended skeleton argument.
4. I am satisfied that the grounds for judicial review of the decision of 6^th November 2015 are not arguable for the reasons I set out later in this judgment. A grant of permission to serve Amended Grounds of Appeal does not, in my view, include permission to serve grounds for a claim for judicial review in respect of a new decision, still less permission to argue those grounds. We considered the grounds so as to bring finality to litigation which has gone on for far too long but it should not be thought that this is the usual course. In this case it meant the time of the court was wasted considering unarguable grounds which had not previously been subject to the filter of permission. This is a road now very well and very recently travelled, see, in particular, the judgments of Underhill and Beatson LJJ in Caroopen and others v SSHD [2016] EWCA Civ 1307, in particular at paragraphs 54, 58, 92 and 93 of the judgments where it is observed that a pragmatic approach prevails in the Administrative Court notwithstanding judgments of this court deprecating "rolling judicial review" (see for example the decision of this court in R (Tesfay and others) v SSHD [2016] EWCA Civ 415 at paragraphs 76-83.
5. Where, rather than or in addition to seeking permission to amend grounds of appeal, a litigant may want to add a claim for judicial review in respect of a later decision this must be made clear to the judge being asked to grant permission to amend the grounds of appeal so that consideration may be given to whether the question of permission should be considered before the hearing of the appeal.

Facts

6. The appellant was born in Pakistan in 1961. He and his mother joined his father in this country in 1963. His two sisters were born here. According to the witness statement of Mr Mohammed, a family friend who lives in this country, the appellant's mother moved back to Pakistan with all the children in 1968. Another son was born shortly afterwards. The appellant's father, Mr Malik, remained in the North East of England where he had employment. In about 1972 the appellant's mother died. According to Mr Mohammed, the appellant's father sought and failed to bring his children back to the UK. Mr Mohammad recalls little of the detail of the proceedings but he remembers interpreting for Mr Malik when he saw his solicitors. He also recalls that neither the visa officer in Pakistan nor the courts accepted that Mr Malik was the father of the appellant or any of his siblings. Curiously in the original application for leave to remain the appellant's solicitors said that the siblings had successfully applied for entry clearance in 1972 and it was only the appellant who had been unsuccessful. Suffice it to say that there is no detail about what happened in 1972. There are no records. Whatever the position with his siblings the appellant did not come to the UK probably because it was not accepted that he was the son of Mr Malik.
7. The appellant's sisters returned to this country and are married to UK Citizens as is his brother who also lives here. The appellant grew up in Pakistan (it is not clear who brought him up), he ran his own business, married and had his children. His family life was entirely in Pakistan. In 2002, thirty years after the refusal to permit him to come to the UK, the appellant sought permission to visit the UK to attend the wedding of his cousin. The Entry Clearance Officer (ECO) in Islamabad refused him entry clearance on the grounds that he was not satisfied that the appellant was genuinely seeking entry for the purpose and period stated. The appellant appealed. Having heard evidence from his sponsor, the immigration adjudicator said (paragraph 21 of his decision) "I find as a fact that the decision of the respondent was not in accordance with the law and the rules and the appellant has shown on the balance of probabilities that at the date of the decision he could meet the requirements of the immigration rules HC395 paragraph 41". HC395, 41(1) requires that the applicant "is genuinely seeking entry as a visitor for a limited period as stated by him not exceeding 6 months". The appeal was allowed. In the course of later proceedings (see below) the appellant accepted candidly that his intention when coming to the UK at that time was to make a life here for himself and his family. It follows that he sought to deceive the Entry Clearance Officer, deceived his sponsor (or persuaded the sponsor to lie on his behalf) and thus deceived the adjudicator who allowed his appeal.
8. The appellant was given entry clearance as a visitor on 22^nd September 2002 and came into the country on 22^nd September. His visa expired on 1^st March 2003 and on 27^th March he applied for leave to remain and for a work permit. The application for a work permit was refused. For some years the appellant's wife and sons moved between the UK and Pakistan. On 16^th September 2004 the appellant, his wife and three sons applied for settlement in the UK. This was refused on 22^nd March 2006. The family appealed and the appeals were dismissed by Immigration Judge Aitken on 11^th May 2006. It was during the course of this hearing that the appellant accepted that when he entered the UK in 2002 he did so "with the intention of permanently residing in the United Kingdom and misled the Entry Clearance Officer in that respect". It appears that some time in the early 2000s the appellant produced DNA evidence that he was the son of Mr Malik. It was the appellant's case before IJ Aitken that he was a man of good character who worked hard to establish his business and family life in the UK. It was not suggested that there was any policy that the Secretary of State had breached in refusing leave to remain. A compassionate approach was urged upon the immigration judge. It was submitted "that there is a chance to put right the wrong of the earlier refusal by granting the appellant and his dependants leave to remain in the United Kingdom".
9. IJ Aitken recorded that until 24^th August 2002 there had been in place an Immigration Directorate's instruction relating to applications previously refused where the applicant was now over 18 and could establish a relationship by DNA. There had been no application by the appellant during the currency of that instruction.
10. IJ Aitken accepted that applications made by Mr Malik to bring the appellant to the UK in 1972 failed because of a lack of proof of the relationship between the appellant and his father. He pointed out that a great deal had happened since 1972 and that the appellant first appeared in the UK 30 years after that refusal. The immigration judge said "I accept that a mistake was made in 1972 with regard to the appellant's relationship with his father, that decision in relation to the then 11 year old appellant does not mean that he is now entitled to claim that he should be granted settlement in the United Kingdom on a discretionary basis at the age of 35 [in fact he was then 45] as it was put to me". The judge considered the Article 8 rights of the appellant and considered that removal would not be a disproportionate interference with his rights. An application was made to the High Court, presumably for Administrative Review. It was refused, unsurprisingly. As of 9^th March 2007 the appellant and his family had no further rights of appeal. In December 2007 further submissions were made and in June 2008 the SSHD served a second notice IS 151A. Further representations were refused on 16^th July 2009.
11. On 4^th July 2012 the appellant, his wife and three sons made further applications for leave to remain. These were refused with no right of appeal. It was this decision that came before the Upper Tribunal judge pursuant to the claim issued on 22^nd October 2013.

The Appellant's Case

12. It is the appellant's case that UT Judge Gleeson failed, when considering the proportionality of the decision to interfere with Article 8 rights, even to consider what is described as the "historic injustice" that had been done to the appellant back in 1972, which injustice had been continued in the subsequent refusals to permit him to remain in the UK.
13. After rehearsing the facts UT Judge Gleeson records that "in 1972 when he was 11 years old the appellant was the only member of the family whose claim did not succeed, because his relationship with his late father was not accepted, erroneously as the Secretary of State now acknowledges".
14. Mr Ali, who developed his submissions with commendable focus describes this as a concession by the Secretary of State and relies upon it in support of the appellant's case. The effect of the concession should not be overstated. The Secretary of State does not accept, nor could she in the absence of any records, that there was an error by the relevant officers and/or the courts in 1972. The decision makers came to their views on the basis of the evidence at that time and any appeals were unsuccessful. She does not accept that there was an unlawful decision, nor was there, as Mr Ali accepts.

Historic Injustice

15. Mr Ali submits that Judge Gleeson should have realised that the question of historic injustice warranted specific consideration. It was not referred to in terms in the original application to the respondent and was, at most, hinted at in barely decipherable manuscript in the claim form seeking judicial review thus "the main claimant lived in the UK from 1963-1968 as a child and could not return as his relationship with his British (sic) was not accepted by ECO." Mr Ali took us to paragraphs 26 and 27 of the Statement of Facts which sets out the version of the early history which the judge then set out in her judgment. He pointed out that the decision in Gurung & Others R (on the application of) v the Secretary of State for the Home Department [2013] EWCA Civ 8 had been in the public domain for some 9 months and, in any event, the point was an obvious one which the judge should have considered.
16. Mr Ali candidly accepted that he was seeking to persuade us to develop the law in respect of "historic injustice" beyond the decision of this court in Gurung. Given that what was required for a claim for judicial review even to be arguable was a development of the law, I find it impossible to conclude that Judge Gleeson missed an obvious point nor do I consider that the parties who presented the case before her were at fault for failing to argue it.
17. As to the substance of the argument, in Gurung the court was concerned with claims by British Overseas Citizens and by Gurkhas and their families. In both categories of case the UK government had in the past implemented unlawful and discriminatory policies with the effect that the claimants' rights to settle in the UK had wrongly been undermined and they had unlawfully been prevented from settling here. In both categories of case the court was satisfied that this earlier and long standing injustice was a powerful factor to be weighed against the public interest in an effective system of immigration when assessing the proportionality of the interference with an applicant's right under Article 8 ECHR. This was interpreted by the Upper Tribunal in Ghising and others (Gurkhas/BOCs: historic wrong: weight (Nepal) [2013] UKUT 567 (IAC) thus at paragraph 4:

" Accordingly, where [as was the case here] it is found that Article 8 is engaged and, but for the historic wrong, the appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an appellant's favour, where the matters relied on by the Secretary of State/Entry Clearance Officer consist solely of the public interest in maintaining a firm immigration policy."

This approach has been followed in a number of subsequent decisions.

18. Mr Ali submits that the appellant's case represents a further example of historic injustice to which the courts should take the same approach. I disagree. The decision made in 1972 is wholly different from the unlawful and discriminatory policies pursued by the government in respect of BOCs and the Gurkhas. It was a lawful decision, made on the evidence available at the time. New scientific techniques revealed many years later that the decision that the appellant was not his father's son was wrong.
19. Mr Ali drew our attention to the fact that the court in Gurung rejected the suggestion that there were relative levels of egregiousness of injustice. He submits that even if the wrong or injustice which occurred here is less serious the principle in Gurung nonetheless applies. I do not accept that submission. In paragraph 41 of the judgment upon which Mr Ali relies the court was considering submissions made on behalf of the respondent specific argument that the injustice suffered by BOCs was greater than that suffered by the Gurkhas because the latter were never British Citizens. The court concluded that,

"there is no place in the balancing exercise required under Article 8 for making fine judgments as to whether one injustice is more immoral or worthy of condemnation. "

In this case there is no question of fine judgments. There is no conduct worthy of condemnation. At the time it was made, the decision was correct on the evidence. Furthermore, there was in place for some years a mechanism for cases to be reviewed once DNA testing was available. We do not know why this route was not used by the appellant. In my judgment this is not a case of historic injustice as understood in Gurung and the related cases. It is part of the appellant's history to be considered but it does not become a factor which effectively determines the outcome of the Article 8 assessment in his favour.

20. It follows that even had the judge considered the historic injustice point she would have concluded, as do I, that the point was unarguable and dismissed the application for permission to claim judicial review.
21. I deal briefly with the other arguments which were directed to the claim for judicial review of the letter of 6^th November 2015. First (Ground 1A) the appellant argues that the respondent's refusal to accept that the appellant has been the victim of an historic injustice renders her decision irrational. I cannot agree. The error which occurred in 1972 in light of the evidence then available cannot sensibly be considered as the same as, or even a development of the situation in the case of Gurung as I have already explained. The respondent plainly took account of the history but she was entitled to find that this was wholly outweighed by the appellant's poor immigration record. It is inescapable that he came into this country in 2002 as a result of repeated deception. Mr Ali argues (Ground 1B) that the dishonesty should be considered in context but I cannot accept that after an interval of 30 years during which he had built up a full life in Pakistan a decision made in 1972 justified dishonesty in 2002. I would add that in 2006 Judge Aitken considered the very point that is now developed before us. His conclusion was correct then and is correct now. Eleven years later, the decision in Gurung has not changed that.
22. I reject the further submission that the respondent's position has been equivocal. It has been consistent.
23. The appellant relies on a further ground (1C), that relationships cannot be maintained from abroad. This is unarguable.
24. Ground 2 is no longer pursued. The Secretary of State was said to be in error in failing to consider whether or not there had been a fresh claim. She issued a further letter in January 2016. I am far from persuaded that that letter was necessary but I say no more about that.
25. Finally, the appellant submits that inadequate weight was given by the respondent to the delays of her department in dealing with these matters. I have reviewed the full chronology. Some delays are attributable to the respondent but the core reason that so much time has passed is that the appellant has used every endeavour to remain in this country having entered by deception in 2002. He has made repeated applications. They have all failed. Delay is not a matter to be held against the Secretary of State in this case.

Conclusion

26. I can see no error by Upper Tribunal Judge Gleeson and I would dismiss the appeal. The claim for judicial review was not arguable. There was no error by the Secretary of State in 2013. There is no error in the letter of November 2015. I would dismiss the claim for judicial review.

Lord Justice McCombe

27. I agree that the appeal should be dismissed and, with it, the claim for judicial review, for the reasons given by Thirlwall LJ.
28. I only add a few words to emphasise my agreement with what is said by my Lady in paragraphs 4 and 5 above as to the procedure adopted on this appeal following the new decision by the respondent in November 2015. Whatever "pragmatism" that there might be on occasions (which I would still hope are few) in the Administrative Court for "rolling judicial review" of successive decisions by public authorities, I can see little, if any, room in this court for embarking upon new judicial review claims of decisions made long after the judgment from which the appeal has been brought.
29. The decisions in R (Tesfay and others) v SSHD [2016] EWCA Civ 415 and Caroopen and others v SSHD [2016] EWCA Civ 415 illustrate the problems inherent in a rolling programme of judicial review, even at first instance. It may be that, in some cases, pragmatism may allow the judges of the Administrative Court to tailor procedures to the cloth of a particular case. However, I would wish to take this opportunity once more to point to the difficulties caused by taking the "rolling judicial review" too far. The difficulties and lack of principle in such a procedure were emphasised in the judgment delivered by Lloyd-Jones LJ in the Tesfay case, at [78] and [79] in particular.

Lady Justice Sharp

30. I have had the advantage of reading the judgments of both my Lady and my Lord in draft, and I agree with them.