England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/05/2012

Mr Justice Wyn Williams:

1. This is a renewed application for permission to apply for judicial review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) whereby it refused the Claimants permission to appeal against a determination of the First Tier Tribunal (Immigration Judge Lawrence) promulgated on 10 August 2011.

Background

2. The Claimants are nationals of India. The First Claimant is married to the Fourth Claimant and the other Claimants are their sons. The Second Claimant was born on 14 July 1993; the Third Claimant was born on 20 February 1990.
3. On 3 May 2003 all the Claimants arrived in the United Kingdom as visitors. The First and Fourth Claimants have remained in the United Kingdom since that time. The Second and Third Claimants travelled between the United Kingdom and India on more than one occasion during 2004 and 2005. The Second and Third Claimants last returned to the United Kingdom on 24 April 2005 and they have remained within the United Kingdom since that time.
4. On 3 May 2003 the Second and Third Claimants were aged, respectively, 9 and 13; on 24 April 2005 they were aged 11 and 15.
5. For most of the time during which the Claimants have been in the United Kingdom they have been 'overstayers'.
6. On 28 June 2007 the Claimants applied to remain in the United Kingdom inviting the Defendant to exercise her discretion to permit them to remain notwithstanding that they did not qualify under the then existing Immigration Rules. On 24 July 2007 the Defendant rejected the application as being invalid. A second application was also rejected as being invalid on 25 September 2007. On 22 October 2007 the Applicants made a valid application and this was refused in a letter dated 1 July 2008. The Claimants were also served with a document entitled "Notice to a Person Liable to Removal".
7. In due course the Claimants appealed to the First Tier Tribunal. Immigration Judge Lawrence considered appeals under Article 8 ECHR and also under paragraph 395C of HC 395. He dismissed both appeals.
8. The Immigration Judge's consideration of Article 8 is to be found in paragraphs 19 to 42 of the determination. At this stage of my judgment it is sufficient to quote from two paragraphs:-

"30. The body of evidence before me demonstrates that the Appellants have established 'private life' in the UK in the long years they have been here without leave. However, I do not find that their removal, as a family of four, is an interference with their rights under Article 8.

31. I next turn to other four steps and consider both 'family life' and 'private life' aspect of Article 8. The first of the remaining four starts with B if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? The answer is again in the negative for reasons set out in preceding paragraphs."

9. Following the publication of the determination the Claimants applied to the First Tier Tribunal for permission to appeal. Two of the grounds upon which the Claimants relied were as follows:-

"(1) The Immigration Judge's consideration and conclusion that the Appellants' removal did not engage Article 8 and would not amount to an interference with their rights is arguably perverse;

(2) The Immigration Judge failed to properly or at all consider that the second and third appellants had remained in the United Kingdom for a considerable period of time as children."

10. Senior Immigration Judge Taylor refused permission to appeal. She acknowledged that ground 1 identified in the preceding paragraph identified an arguable error of law. in relation to the second ground she said:-

"The Second and Third Appellants are both adults and the case law with respect to children is therefore not relevant. The Immigration Judge was plainly aware of the factual matrix underpinning their claims."

She also said that the assessment of proportionality was a matter for the Immigration Judge and "absent a misdirection in law" that assessment would not be overturned by an appellate authority.

11. The Claimants renewed the application for permission to appeal to the Upper Tribunal. The same grounds were advanced. Senior Immigration Judge Spencer refused permission to appeal in a decision dated 22 September 2011. It is this decision which is the subject of the application for permission to apply for judicial review. This is what the Senior Immigration Judge said:-

"The Immigration Judge was correct to suggest that the ECHR in Nnyanzi v The United Kingdom – 21878/06 [2008] ECHR 286 did not find that the appellant's accountancy studies, church activities and an unspecified friendship with a man in the United Kingdom during her ten year stay constituted private life within the meaning of article 8 but this was only because the Court felt that it was unnecessary to do so since it found, on the hypothesis that they did, that the appellant's removal would not amount to a disproportionate interference with her article 8 rights. In the present case although it is arguable that it was an error of law for the immigration judge not to find article 8 engaged in respect of the appellants' private lives, nonetheless the immigration judge went on to consider the remaining steps as per the opinion of Lord Bingham in Razgar, R (on the application of) v Secretary of State for the Home Department [2004] UKHL 27 which included the issue of proportionality. The immigration judge took account of the fact the second and third named appellants had been in the United Kingdom since they were 11 and 15 years old respectively. They were adults at the date of the hearing and the immigration judge was not required to have regard to their best interests. He did not hold it against them that they had remained in the United Kingdom unlawfully. That they had done so was clearly the case and a factor to be taken into account. He specifically considered the opinion of the House of Lords in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 and the relevance of the delay of the respondent as paragraphs of the determination 38, 39 and 40 show. The grounds amount to an attempt to re-argue the merits of the appellants' appeal but they do not disclose an arguable error of law in the determination of the appeals."

Discussion

12. In R (Cart) v The Upper Tribunal [2011] 3WLR 107 the Supreme Court held that applications for permission to proceed with claims for judicial review of refusals by the Upper Tribunal of permission to appeal to itself should be granted only if the error of law allegedly made by the Upper Tribunal involved an important issue of principle or if there was "some other compelling reason why the matter should be heard".
13. Mr Knafler QC, on behalf of the Claimants, accepts that the errors of law which he identifies as supporting his application for permission to apply for judicial review do not involve important issues of principle. He submits, however, that permission to apply for judicial review should be granted since there is "some other compelling reason why the matter should be heard."
14. In his skeleton argument Mr Knafler QC seeks to identify how the "some other compelling reason" test should be applied in practice. He relies upon the expressions of view contained in Cart at paragraph 57 (Lady Hale), paragraph 92 (Lord Phillips), paragraph 104 (Lord Clarke) and paragraph 131 (Lord Dyson).
15. The test for determining "some other compelling reason" was given detailed attention by the Court of Appeal in PR (Sri Lanka) and others v Secretary of State for the Home Department [2011] EWCA Civ 988. The judgment of the court was given by Carnwath LJ (as he then was). Having reviewed a number of important authorities, including, of course, Cart itself, he said this about the proper approach to what constitutes "some other compelling reason".

"35. Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be "very high" or (as it was put in Cart para 131) the case should be one which "cries out" for consideration by the court. The exception might apply where the first decision was "perverse or otherwise plainly wrong", for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it "plainly unjust" to refuse a party a further appeal, since that might, in effect, "deny him a right of appeal altogether". In Cart Lord Dyson, following Laws LJ, characterised such a case as involving "a wholly exceptional collapse of fair procedure" (para 131). Similarly, Lord Hope in EBA referred to cases where it was "clear that the decision was perverse or plainly wrong" or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all".

36. It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words "compelling" means legally compelling, rather than compelling, perhaps from an political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

16. In his written skeleton and in his oral submissions Mr Knafler QC sought to rely upon the recent decision of the Court of Appeal in JD (Congo) and others v Secretary of State for the Home Department [2012] EWCA Civ 327. In particular, Mr Knafler suggests that JD (Congo), is authority for the proposition that there will be a compelling reason to hear a second appeal (and, therefore, to grant permission for judicial review) where there is a "strongly arguable error of law."
17. Mr Knafler QC is correct when he submits that the Court of Appeal in JD (Congo) was considering the second-tier appeals test. However, it was doing so in a particular context, namely in relation to appeals from the Upper Tribunal to the Court of Appeal. Further, its primary concern was to determine how the second-tier appeals test should be applied in cases where the Appellant had succeeded before the First Tier Tribunal but failed in the Upper Tribunal following a successful appeal by the Secretary of State. In that particular context it may be that the Court of Appeal would be prepared to adopt an approach which was slightly more flexible than that suggested in PR (Sri Lanka). Obviously, that is a matter for the Court of Appeal. However, I do not read JD (Congo) as changing, in any way, the principles formulated in Cart itself and the elucidation of the "other compelling reason" test in PR (Sri Lanka).
18. It was common ground, in effect, before me that the determination of Immigration Judge Lawrence contained at least one very arguable error of law, namely the conclusion that the Interested Party's decisions of July 2008 had not interfered with the Claimants' rights under Article 8. That very arguable error was recognised by both the Senior Immigration Judges who refused permission to appeal and, in particular, of course, by Senior Immigration Judge Spencer.
19. It was also common ground, however, that this error did not, necessarily, invalidate the determination of Immigration Judge Lawrence. That is so because the judge, quite correctly, considered the position should it be the case that the Defendant's decisions had infringed the Claimants' rights under Article 8. I say considered the position; what the judge sought to do was to apply the five stage assessment suggested as being appropriate in the speech of Lord Bingham in Razgar v SSHD [2004] UKHL 27. That five stage assessment is set out as paragraph 19 of the Immigration Judge's determination and is as follows:-

"a) will the proposed removal be an interference by a public authority with the exercise of the Appellant's right to respect for his private or family life?; b) if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?; c) if so, is such interference in accordance with the law?; d) if so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?; and e) if so, is such interference proportionate to the legitimate public end sought to be achieved?"

There can be no doubt that if the Immigration Judge lawfully applied questions 3, 4 and 5 it would matter not that he had, arguably, fallen into error in his assessment of the first two questions.

20. Mr Knafler QC submits that it is clear that the Immigration Judge fell into error, in particular, when considering question 5, i.e. the question of proportionality. Mr Knafler submits that in recent years both the Court of Appeal in England and Wales and the European Court of Human Rights have delivered a series of judgments which strongly emphasise that great importance is to be attached to the right to respect for the private lives of young adults who have lived in a particular country since a young age although they are nationals of another country. He submits that "very serious reasons" are required to justify the expulsion of such persons. For these submissions Mr Knafler QC relies, in particular, upon Peart v Secretary of State for the Home Department [2012] EWCA Civ 568 and Maslov v Austria [2009] INLR 47.
21. It is true that the determination of the immigration judge does not refer, expressly, to Maslov. That said, in paragraphs 19 to 34, in particular, the immigration judge does appear to have set out all the facts which were relevant to a consideration of the proportionality of the infringement of the Article 8 rights of the Second and Third Claimant and therefore, reach a conclusion upon the issue of proportionality.
22. Mr Deakin submits that there was no arguable error of law in the assessment of proportionality undertaken by Immigration Judge Lawrence. He submits, further, that Senior Immigration Judge Spencer was correct when he observed that the immigration judge had taken account of the fact that the Second and Third Claimants had been in the United Kingdom for a significant period of time and during their childhood.
23. I am prepared to accept that Immigration Judge Lawrence may have fallen into error when making his assessment of proportionality in relation to the Second and Third Claimant. He may not have attached sufficient weight to the fact that they spent many of their formative years in this country. If that is right, it follows that the Upper Tribunal arguably perpetuated that error. I am not prepared to accept, however, that the prospects of proving this error are "very high" or that the case is one which "cries out for consideration" by this court.
24. I have also considered whether the first decision i.e. the decision of Immigration Judge Lawrence can be considered perverse or otherwise plainly wrong on the issue of proportionality. I do not consider that it can be so designated not least because Mr Knafler QC was frank enough to acknowledge that a proper application of the principles enunciated in Maslov would not necessarily mean that the Claimants' appeal from the decisions of the Interested Party or an appeal from the determination of the immigration judge would succeed. During the course of argument Mr Knafler fairly acknowledged that on the facts of this case the Claimants might succeed before some immigration judges but they might fail before others.
25. I have reached the conclusion that the Claimants cannot satisfy the test laid down in Cart. As I hope is clear the First and Fourth Claimants have no prospect of obtaining permission unless the Second and Third Claimants can persuade me that permission should be granted in their cases.
26. Accordingly I refuse this renewed application.
27. I should add for completeness that at the conclusion of the hearing a suggestion was made that permission to apply for judicial review had been granted in a similar case or other similar cases and that a substantive hearing was due to take place quite shortly. It is now acknowledged that there is no imminent substantive hearing of a similar case or cases although in an email Mr. Knafler QC informs me that there have been grants of permission in at least some cases which are similar to this one.
28. I have not been provided with any detail of other "similar cases" and in all the circumstances I propose to ignore what may or may not have happened in other cases. Like Mitting J before me I am satisfied that on a proper consideration of the issues in this case permission to apply for judicial review should be refused.