RJ (Gambia) v Secretary of State for the Home Department

LORD JUSTICE DAVIS: I feel myself at something of a disadvantage in this case because, without needing to go into the reasons, a number of materials have only been placed before me this morning and indeed the focus of the argument this morning has much more closely focused on the ruling that there was a material error of law on the part of the First-tier Tribunal.

If one reads the final decision of the Deputy Upper Tribunal Judge Pickup, it seems to me that one can find no error in it. He appraises the law correctly by reference to the rules as amended. He approaches the facts in a way open to him and I was not impressed by the arguments advanced by reference to the best interests of child. That is not to say I was not impressed by them in human terms. I was. But the legal position is really now quite clear: Deputy Upper Tribunal Judge Pickup addressed them and it seems to me that one really cannot advance the position of this very young child and indeed his mother, both British citizens, as if though they are a trump card. That clearly is contrary to the legal position.

What has to be focused on, as I see it, is whether or not there was a material error of law or arguably so in the decision of the First-tier Tribunal judge. I must say my reading of that ruling was one of some surprise. It seems to have treated this matter, which had to be dealt with outside the rules, as is conceded, as in effect an ordinary, if I may use that word, exercise in Article 8 proportionality, without any focus on the need there being some compelling reason or exceptional case whereby, outside the rules, this applicant should be permitted to remain.

Ms Naik this morning has focused, to a considerable extent, on MM (Lebanon) and certain other authorities (none of which unfortunately had been drawn to my attention before this morning) in her argument that the First-tier Tribunal had approached the matter in a way open to him and even if, although she did not concede this, the actual decision was an indulgent one it was one within a proper ambit of his discretion and evaluation.

I am, as I say, feeling rather disadvantaged because of the late citation of the authority and the late focusing of the points and in these circumstances and with some reluctance I am not going to give a ruling today, I am going to adjourn this matter for a further hearing. Not only can these points then be properly considered in advance but also this is the kind of the case, in view of the way the point is put, that I think would be assisted both by an acknowledgement of service with grounds of defence relating to this application from the Secretary of State and also by attendance of the Secretary of State through counsel on the next occasion.

So what I am going to do is adjourn this application for a further hearing, to come before myself if available but if not available before any other single Lord Justice. I am going to direct that the Secretary of State put in grounds of resistance to the application, the Secretary of State being provided not only with Ms Naik's skeleton argument but also her statement on renewal, so that the Secretary of State can consider, amongst other things, what is said about the impact of MM (Nigeria) , SS (Nigeria) and other cases on previous decisions such as Gulshan and in addition Nagre and make any other points that the Secretary of State considers appropriate to this application for permission to appeal.

The Secretary of State's written response to this renewed application and Ms Naik's written arguments is to be filed by and served by no later than 4.30 pm on Wednesday 6th January 2016. This matter is to come on for hearing by no later than Monday 8th February 2016 and, as I say, is reserved to myself if available but if not to some other single Lord Justice, with a time estimate of 45 minutes.