E v Secretary of State for the Home Department

LORD JUSTICE NEUBERGER: This is an application on behalf of Mr E for permission to appeal against the decision of the AIT upholding a decision of the adjudicator Mr Sanderson, who in turn rejected the appeal of Mr E against the refusal of the Secretary of State to grant him asylum. Ultimately it is said that the AIT went wrong in two respects. The first and more minor error, but one which would I think give me a nagging feeling of concern, albeit that I am not sure that on its own it would be enough to persuade me to grant permission to appeal, is contained in the first sentence of paragraph 15 of the AIT’s decision. That sentence indicates that they thought that there was a further application, which could succeed, which had been made by Mr E, namely “The marriage application of 16 June 2004”. Ms Webber, who appears on behalf of Mr E, says that that is wrong. As I say, on its own I am not sure that that would persuade me that permission to appeal should be granted; it may be it was simply a throwaway line indicating that this was not necessarily the end of the road for Mr E. But given that I think it right to give permission to appeal on the main issue, it would be unrealistic to shut this out as a point which could be taken on his behalf.

The main issue really centres on paragraphs 11 and 12 of the decision. This concerns whether or not the adjudicator was right not to take into account the point made by Mr E in relation to his case under Article 8 of the Convention, not merely that he had married a resident of this country since coming here, but that she had a son, B, aged 16 years old, who had resided for all his life in this country. In paragraph 11, the AIT concluded that there was no error of law in this connection on the part of the adjudicator, because his failure to take this point into account was not an error as it had not been raised by or on behalf of Mr E in his original application before the Secretary of State. In paragraph 12 the AIT went on, it may be thought on one view, to consider the point on its merits in any event and to reject it.

When refusing permission to appeal on this point Buxton LJ wrote this:

It seems to me that Buxton LJ took the view that if the AIT’s decision had rested on paragraph 11 he would have thought the point was sufficiently open to argument to allow permission to appeal. I agree with him and I have not troubled Miss Webber on that point. The question of whether to grant permission to appeal on this issue therefore centres on paragraph 12. Miss Webber says, and I agree with her, that in order to enable the AIT to dismiss the appeal, assuming they were wrong in paragraph 11, one either has to read paragraph 12 as saying that the adjudicator could only have come to the same conclusion as he did even if he had considered the position of B under DP3/96, or that they had considered the point independently and had come to the same conclusion.

As I read paragraph 12, they probably were adopting the first of the two courses. Ms Webber says, and I think there is force in this, that that view is supported by the fact that the AIT did not give Mr E the opportunity of calling evidence or making further submissions on the facts relating to B’s position. The notes to paragraph 5 of DP3/96 do appear to suggest, as Miss Webber says, in paragraph (2)(a)(b), that the Secretary of State should have taken into account, if the point had been made to him, the fact (a) that Mrs E, the applicant’s wife, had very strong and close family ties in the United Kingdom such as older children from a previous relationship that formed part of the family unit, and (b) that the settled spouse had been settled and living in the United Kingdom for at least the preceding ten years.

It seems to me by no means clear whether either or both those factors on their own are intended to be strong indications in favour of granting asylum. I say that because on their own one might assume that one would dig rather further and look at the facts. However, when one compares (a) and (b) with (c), (c) appears to be a free-standing provision like (a) and (b), and it seems to me clear that, if (c) is satisfied, it provides a strong argument on its own. If that is right, then one might have thought that there was an argument for saying that (a) and (b) have similar force. I emphasise that I am by no means satisfied that that is correct, but it seems to me that the point is one which is sufficiently arguable to be worthy of consideration by this court.

Quite apart from that, even if that is putting it too high, it seems to me that Miss Webber should be entitled to argue on behalf of Mr E that, in reaching its decision in paragraph 12, the AIT was putting it a bit high. Can one really be reasonably confident that the adjudicator would not have reached any other conclusion but that the appeal should be dismissed, if he had had his attention drawn to the existence of B, his age, his position in this country and the terms of the notes to paragraph 5 of DP3/96?

It may be that after consideration, this court will take the same view as that taken by the AIT, but in light of the fact that at the moment there is no evidence as to what was said to the adjudicator in this connection, and in light of the question as to how one construes the notes, I consider that the point is sufficiently arguable for it to be wrong to refuse permission to appeal.

Thus I propose to grant permission to appeal on this issue, and with it the more minor issue which on its own I rather doubt would justify an appeal, namely the first sentence of the last paragraph of the decision of the AIT.

In my view this appeal should not last more than half a day and it should be heard by three judges, of whom one could be a High Court judge.