MS (Pakistan) v Secretary of State for the Home Department

This brief judgment should be read as a footnote to and in combination with the judgment that I gave on 3 May 2007. On that occasion we adjourned the application for permission to appeal so as to enable the Secretary of State to be present in order that he might explain the lamentable delays in the processing of the original application and in order that he might assist on what I might describe as the new point relating to section 3C of the Immigration Act 1971. The lamentable delays are accepted as being lamentable by the Secretary of State and an apology has been made. That was appropriate.

Turning to the grounds of appeal. The point which Mr De Mello raised last time and which I described at some length in the judgment relating to section 3C of the 1971 Act is now conceded by Mr Coppell on behalf of the Secretary of State to be arguably a correct statement of the law; he does not go beyond conceding its arguability. What Mr Coppell says is that notwithstanding its arguability, this application to this court is not the proper forum for its determination. He says that for the reason that was anticipated in the judgment on the last occasion, namely that the point was not expressly before the AIT and was not considered by it in its determination, although it was considered at a later stage by a senior immigration judge when refusing leave to appeal to this court.

Because it was not on the agenda before the Asylum and Immigration Tribunal at the time of their substantive determination, Mr Coppell submits that there was no error of law committed in relation to it and it cannot now provide the foundation for an appeal to this court, even though it is an arguable point. If the applicant has a remedy, says Mr Coppell, it is by way of a subsequent application to the Secretary of State to consider his case under the Immigration Rules, particularly paragraph 276, and the ten years’ continuous lawful residence requirement.

Mr De Mello seeks to argue against that approach. He draws our attention to the case of Uddin v Immigration Appeal Tribunal [1991] Imm AR 134. In my judgment there is nothing in that decision which assists Mr de Mello in the present circumstances. The position now is that the Asylum and Immigration Tribunal is not obliged to consider any ground of appeal outside those which are expressly put before it, save and except “Robinson obvious” matters and “Robinson obvious” matters are those going to points that are not only obvious but are obvious in the context of international obligations under the Refugee Convention and the ECHR.

In my view, it is quite impossible now for this applicant to raise the argument he wishes to raise at this stage in the proceedings. Mr De Mello is to be commended for identifying this point; he only came into the case after the substantive determination by the AIT. Until then the applicant had different legal representation. Accordingly, I take the view that there is not a ground of appeal which has a real prospect of success in this court because the arguable point that has been raised was not raised in the AIT, was not “Robinson obvious” and does not relate to any error of law which can be placed at the door of the AIT. We are told that the applicant has now made an application to the Secretary of State for consideration under the Immigration Rules by reference to the ten-year provision. It seems to me that it would be entirely appropriate for the Secretary of State to consider that application substantively.

For my part, I would not expect the Secretary of State to take any point under section 96 of the Nationality Immigration and Asylum Act 2002 to the effect that the point is beyond this applicant because it was not taken in the earlier proceedings. The point is arguable; its arguability eluded the senior immigration judge, who considered the question of permission to appeal to this court. He did not accept the arguability that Mr Coppell now on behalf of the Secretary of State does. In those circumstances, it seems to me that it would probably be inappropriate for the Secretary of State to certify the matter under section 96. Accordingly, I hope and expect that the matter will receive substantive consideration by the Secretary of State.

So far as the remainder of the case is concerned, essentially it is a proposed appeal based on the AIT’s rejection of the applicant’s case under article 8 of the ECHR. Whilst the applicant is one who inevitably attracts sympathy in view of the fact that he has, as the AIT observed, been living in this country for years, is a hard-working and law-abiding member of the community, has established ties with friends, neighbours and work colleagues and so on. The AIT did not, in my judgment, fall into any legal error when rejecting his article 8 claim. Mr De Mello seeks to read across into the article 8 proposed ground of appeal the Immigration Act point to which I have referred. The answer to that is the same as the one I have already given, namely that because it was not before the AIT it cannot be said that there was any legal error committed in relation to it.

He also seeks to rely on the change in the test of proportionality recently effected by the House of Lords in Huang. In my judgment, notwithstanding the change in the formulation of the test, this remains a case that could not succeed under article 8. Nor do I consider that the reasons are inadequate. The question of the unexplained delay of almost nine years was considered by the AIT; on that too the law is, in my judgment, against the applicant on article 8 having regard to the decision of this court in H B and Others v Secretary of State for the Home Department [2006] EWCA Civ 1713. This is a case really of delay and delay alone rather than any particular disadvantage brought about by that delay.

Accordingly, my conclusion is that there are no arguable grounds of appeal here which are properly before the court which would give rise to a real prospect of success, and if the applicant has any hope of preserving his position in this country it is by reference to his fresh application to the Secretary of State under the immigration rules which will be considered in due course.

Accordingly, I would refuse permission.

I agree.