MI (Nepal) v Secretary of State for the Home Department

LORD JUSTICE AIKENS: This is a renewed application for permission to appeal by the applicant. The application is for permission to appeal the determination of the Upper Tribunal promulgated on 28 July 2014, whereby the appeal of the applicant against the dismissal of the First-tier Tribunal, Judge~Boyd, of an appeal from the Secretary of State's decision, was itself dismissed.

The applicant is a national of Nepal and she was born on 16 January 1985. The applicant is the daughter of a former Gurkha. The applicant's mother lives in the United Kingdom. The applicant herself came to the United Kingdom lawfully in 2009. She applied for indefinite leave to remain outside the Immigration Rules, but that application was rejected. The appeals were against that refusal.

The essence of the case as it was put before the two lower tribunals was that Article 8 was engaged because the applicant had to look after her mother who was medically unwell and that in the circumstances of this case the proportionality exercise came down in her favour. That argument was rejected by both tribunals.

In the current application, Mr Jesurum raises a much more substantial point. The point was touched upon in written submissions that appear to have been placed before the Upper Tribunal, as is clear from a document to which Mr Jesurum drew my attention in the current bundles. It is dated 26 March 2014. This document pointed out that the applicant's father was discharged from the Gurkhas before the applicant was born but that if (this is from reading into the document the sense which Mr Jesurum says it should have) the applicant's father had had the opportunity to settle in the United Kingdom at that stage, then she would have been born within the UK, would have become a British citizen and matters would have been totally different.

This is described in the document as "an historic injustice". That is a reference, effectively, to the matters which have been dealt with in the leading case dealing with the position of family members of former Gurkhas, which is R(Gurung & Ors) v Secretary of State for the Home Department [2013] 1 WLR 2546. That is a decision of Lord Dyson, Master of the Rolls, sitting with Sullivan and Patten LJJ.

The new argument that Mr Jesurum wishes to raise, effectively, is this: that this is a case where it is arguable that although the applicant's father died some long time ago, there is evidence that he would or could or might have settled in the UK if he had been given the opportunity to do so, but for "the historic injustice" and accordingly the position of the applicant would then have been very different because she would have been born here and would have been a UK citizen. That, Mr Jesurum wishes to argue, turns the position with regard to Article 8.1 around, bringing into play factors considered by this court in another decision, which is Patel, Modha & Odedra v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17 (see in particular the judgment of the Sedley LJ at paragraph 15). Mr Jesurum wishes to raise this argument despite the fact that it has not really been canvassed at all in the tribunals below and despite the fact that there is therefore no finding of fact in relation to the position of the applicant's late father and what he would, could, or might have done had the "historic injustice" not been present.

I am sufficiently persuaded that there is some merit in these arguments to say that they need a response from the respondents. Given the somewhat unusual circumstances, it seems to me that it would not be right simply to grant permission to appeal, particularly as this is an application to bring a second appeal. In the circumstances, I am going to say, therefore, that this application is to be adjourned and on the renewed application the full court of three members will hear the application for permission and if that permission is granted, the court will go on to hear the appeal itself.

It will be obvious from all I have said that the grounds of appeal need to be revised. Mr Jesurum has produced a draft but it is more in the nature of a draft for the purposes of permission to appeal rather than the appeal itself and that draft needs some alteration. He must prepare that revised version raising all the grounds that he wishes to advance on the appeal if permission is granted and he should do so within 21 days and that must be served, of course, on the respondent.

There is another issue which arises in this case and that concerns the potential costs of this appeal. The position, of course, is now that legal aid is no longer available for appeals such as the present one. Mr Jesurum has drawn my attention to CPR Part 52.9A, which gives the court the power to limit the recoverable costs on an appeal. Paragraph 4 of that order stipulates that "an application for an order limiting the recoverable costs on appeal is to be made as soon as practicable and will be determined without a hearing unless the court orders otherwise". I asked Mr Jesurum whether or not I have the power to make such an order in circumstances where permission to appeal has not been granted but where I make an order that there should be an adjournment for the question of permission to be heard for the full court with an appeal to follow if permission is granted. In his submission, I do have the power to make the order despite the fact that permission to appeal has not been granted. There is certainly nothing in the Rule itself which suggests that I have not.

I am therefore going to make an order that the recoverable costs of the appeal be limited, indeed that they be limited such that each side will bear its own costs whatever the outcome of the appeal might be. Because I am making this order ex parte, I imagine that the Secretary of State therefore can come before the court and seek to argue that the order relating to costs should be discharged for whatever reason because it was made on an ex parte basis. Mr Jesurum understands that but I make the order nevertheless.

The appeal will therefore be heard by three Lords Justices, one at least of whom must have immigration experience. The time estimate will be half a day.

MR JESURUM: My Lord, two points arising. The first was that your Lordship referred to the document that was below as having been before the First-tier Tribunal. My understanding from the dates is that it would in fact have been before the Upper Tribunal.

LORD JUSTICE AIKENS: If that is the case, I will amend the transcript.

MR JESURUM: The second point, my Lord, I say it simply so that the respondent is not caught by surprise, the grounds which I sought to argue before your Lordship and would seek to argue before the full court concern Article 8.1 family life and Article 8.1 private life.

LORD JUSTICE AIKENS: Indeed. Again, when the respondents read the transcript of the hearing, they will able to see that themselves. But they will see it anyway because it will all be done within 21 days.