Khatoon, R (on the application of) v The Entry Clearance Officer, Islamabad & Anor

LORD JUSTICE LAWS: This is an appeal with permission granted by Moore-Bick LJ on 28 October 2013 against the decision of Wyn Williams J given in judicial review proceedings in the Administrative Court on 26 April 2013 (see [2013] EWHC 972 (Admin)). The judge below declined to quash the decision of the Upper Tribunal (Senior Immigration Judge Storey) of 2 February 2011 by which Judge Storey refused permission to appeal to the Upper Tribunal against the earlier determination of the First-tier Tribunal ("the FTT") (Immigration Judge Gurung-Thapa) which had been promulgated on 16 November 2010. The FTT had dismissed the appellant's appeal against the entry clearance officer's refusal of entry clearance to her on 25 January 2010. Because the subject of the judicial review was the Upper Tribunal's refusal of permission to appeal to itself, the High Court was required to be satisfied that it raised an important point of principle or practice or there was some other compelling reason for the application to be heard. The judge granting judicial review permission (His Honour Judge Rogers on 28 March 2012) had been so satisfied.

The case raises issues as to the construction of paragraph 27 of the Immigration Rules and the application of Article 8 of the European Convention on Human Rights.

The facts are succinctly described in outline by Wyn Williams J in his judgment as follows:

As the judge noted at paragraph 16, at the time she made her application for entry clearance the appellant was aged 17 years and 10 months. When the ECO determined the application on or about 25 January 2010 she was 18 years and 1 month. Her application was sent under cover of a letter from herself. She said this:

In the application for entry clearance the appellant stated that she was living in Pakistan with her mother and siblings. As the judge noted at paragraph 17, there was it seems nothing to show that the fact that the mother and younger brothers had travelled to the United Kingdom in November 2009, after the applicant's application but before it was decided, was made known to the ECO.

The appellant's application was for indefinite leave and should therefore have been considered under paragraph 297 of the Immigration Rules. In fact the ECO dealt with it under paragraph 301 which relates to applications for limited leave, but the relevant conditions which the appellant had to satisfy were the same. Nothing therefore turns on the mistake.

Paragraph 297 provides so far as relevant:

In light of the first issue in the case I must also set out paragraph 27 of the Rules:

The entry clearance officer for his part was not satisfied that the appellant was the daughter of Mr Akram and Mrs Akhtar. That was the principal basis of his refusal of entry clearance. However by the time the case got to the FTT on 28 October 2010 there was DNA evidence which conclusively established that Mr Akram was the appellant's father, so that issue fell away. However the immigration judge did not accept that the appellant would be adequately accommodated (paragraph 20 of her decision) or maintained (paragraph 21) without recourse to public funds. The appeal was therefore dismissed. The immigration judge did not address Article 8 of the Convention. No issue had been raised under Article 8 either in the grounds of appeal to the FTT or by the appellant's solicitor representative at the hearing.

Dealing with the applicant's application to appeal to the Upper Tribunal, SIJ Storey indicated that he had "some reservations about the accommodation assessment issue" but there was "no arguable error in the immigration judge's treatment of the other issues and that being so the appeal could have had no other outcome". The prospective grounds of appeal to the Upper Tribunal however had sought to pray in aid Article 8. SIJ Storey said this:

Because of the appellant's age when her application was made (just under 18) and when it was decided (just over 18) paragraph 27 of the Immigration Rules which I have read applies to the case. The first issue before us is whether paragraph 27 is to be interpreted as Mr Hawkin for the appellant contends. The argument for the appellant is succinctly summarised by Wyn Williams J at paragraph 28 of his judgment as follows:

Mr Hawkin says that this interpretation is required in order to protect important rights and interests enjoyed by children under 18, for the sake of internal consistency in the application of paragraph 297 and to give effect to the duty to consider the best interests of a child imposed by section 55 of the Borders, Citizenship and Immigration Act 2009. He submits also that the appellant's construction is supported by the terms of section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002, which provides that the appeal tribunal may consider evidence relating to a matter arising after the date of the decision, save in an appeal against a refusal of entry clearance when "the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse". These points are all made with great clarity in the skeleton argument. Mr Hawkin has elaborated them in his submissions before us this morning.

The respondent's argument on paragraph 27 of the Rules is expressed equally crisply by Wyn Williams J at paragraph 29 of his judgment as follows:

In my judgment the starting point for this part of the case is what seems to me the undoubted fact that the respondent's interpretation accords with the natural and ordinary meaning of the Rule. That was the judge's view (see paragraph 30 of the judgment). He saw no reason why the words should not be given their ordinary meaning. Nor do I. That is the established approach to the interpretation of the Immigration Rules (see Mahad v Entry Clearance Officer [2009] UKSC 16 paragraph 10). The terms of paragraph 297 do not I think assist the appellant. They will simply be applied to the case in hand subject to the requirement given effect by the ordinary meaning of paragraph 27 that the application is not to be refused simply on the ground that the applicant has turned 18 by the date of decision.

Section 55 of the 2009 Act imposes no requirement, explicit or implicit, that a child's application has to be determined before his or her 18th birthday or treated as if it was so determined so as necessarily to import into the case the whole body of learning concerning children's best interests, a body of learning described in some detail in the appellant's skeleton argument. That jurisprudence in my judgment would only in truth have any bite on this case if Mr Hawkin is already shown to be right about paragraph 27. It does not itself promote Mr Hawkin's argument on that issue.

Special considerations may of course arise in particular cases, for example where a decision is unconscionably delayed or there are other circumstances having special features. But these do not warrant a strained and artificial reading of paragraph 27. They may be dealt with (as in various instances they have been) where necessary by a decision outside the Rules.

The requirement of section 85(5) of the 2002 Act that in an entry clearance appeal the Tribunal is to "consider only the circumstances appertaining at the time of the decision to refuse" cannot have effect to import into a case like the present the corpus of law relating to children's rights where at the time of the appeal decision the appellant is not a child at all. The force of the section 85(5) requirement for the purposes of such a case is fully allowed for, as it seems to me, by the ordinary language interpretation of paragraph 27. I cannot see moreover that the decision in AS (Somalia) [2009] 1 WLR 1385 to which Mr Hawkin took us this morning affects this conclusion.

For all these reasons I would hold that the respondent's interpretation of paragraph 27 adopted by the learned judge below is correct.

The other point in the case is whether, as Mr Hawkin submits, the tribunals ought to have considered whether the applicant's application for entry clearance ought to prosper having regard to rights enjoyed by her under Article 8 of the Strasbourg Convention. The appellant asserts first that the ECO should have but did not consider Article 8. It is said that this was a breach of Home Office policy guidance directed to ECOs "ECB02 Human Rights". That document provides:

It is of course to be remembered that for his part the entry clearance officer was not satisfied that the appellant was the child of the sponsor. Whatever the position so far as the entry clearance officer was concerned, we must direct ourselves to the position in the appeal tribunals. At paragraph 1 of his judgment Wyn Williams J records the fact that counsel for the appellant did not pursue any claim for relief in relation to the ECO's determination itself, and that, it is to be presumed, remains the position.

As I have said, no point was raised on Article 8 before the FTT and the FTT did not address any such point. In my judgment it is entirely clear and a matter of settled law that there was no obligation upon the FTT to consider Article 8 for itself unless in the circumstances it was "readily discernible as an obvious point of Convention law which favours the applicant" (see Robinson [1998] QB 929 at paragraph 39). In my judgment any other approach would loosen the discipline of tribunal appeals to the detriment of the public interest. Attempts by the appellant (see for example paragraph 54 of the skeleton) to erect some higher and automatic duty said to be owed by the FTT seem to me with respect to have no basis in principle.

Article 8 did not in my judgment furnish this appellant with an obvious Convention point in her favour. I have already set out what was said by Senior Immigration Judge Storey in the Upper Tribunal, which on the facts of this case seems to me entirely unexceptionable. Wyn Williams J for his part said this at paragraph 50 of his judgment:

That too seems to me unexceptionable. The appellant I should emphasise seeks by Mr Hawkin to build a stronger case on the facts (see for example paragraph 56 of the skeleton), but the points there made and elaborated to some extent by Mr Hawkin this morning do little but emphasise the contextual background of the case, much of which was uncontentious. Moreover, however that may be these points do not separately or together amount to any argument of law. In the same vein I should note that what appear to be attempts by the appellant to call into question the First-tier Tribunal's conclusions as to the position relating to her maintenance (see paragraphs 30 and 31 of the skeleton) raise no point of law and are not viable in this court. I should add that with respect I have not been assisted by authorities such as Ahmadi [2005] EWCA Civ 1721, Neulinger v Switzerland (2012) 54 EHRR 31, or Huang [2007] 2 AC 167 to which Mr Hawkin referred us this morning.

Finally it is of course to be remembered that by the date of the FTT decision the appellant was about one month short of her 19th birthday and she had not satisfied the FTT that she would not have recourse to public funds.

For all these reasons I would dismiss this appeal.

LORD JUSTICE TOMLINSON: I agree, and I particularly wish to associate myself with my Lord's observations as to the need to impose some form of discipline upon the circumstances in which decisions of tribunals can successfully be impugned upon the basis that the tribunal in question failed to address Article 8 arguments for which no factual substratum was established and which were not raised at the time.

LORD JUSTICE BRIGGS: I agree with both judgments.