CG (China) & Anor v Secretary of State for the Home Department

SIR ERNEST RYDER: This is an application for permission to appeal the determination of Deputy Upper Tribunal Judge McCarthy promulgated on 19 May 2014. It was refused on paper by Richards LJ. In attractive submissions this afternoon, Mr Jagadesham renews the applications.

The context is of considerable importance. The appellants came to the United Kingdom on 22 June 2009 as visitors and had the right to remain in that capacity until 15 December 2009. The reason for their visit was the ill health of their husband/father, whose asylum application had been refused. Subsequently he was diagnosed with a terminal condition. The appellants applied on 15 December 2009 for their leave to enter to be varied on compassionate grounds. This was refused on 2 March 2010. On 20 May 2010 they submitted further representations identifying the compassionate circumstances and asserting human rights issues upon which they placed reliance (for example, their adherence to the Christian faith in China). Their application was rejected on 22 September 2011 for reasons that it is said fall within the correction of injustice principle because the following day their husband/father was granted discretionary leave to remain under the "legacy programme".

The appellants judicially reviewed the decision relating to themselves and that was compromised by a consent order sealed on 6 August 2012, by which the Secretary of State agreed to make a fresh decision with an in-country right of appeal. On 10 October 2012, the Secretary of State decided not to vary the basis upon which the appellants had entered the United Kingdom and gave removal directions. The appellants appealed on two bases: (a) the decisions violated the correction of injustice principle, a basis not now pursued before this court; and (b) the decisions were contrary to ECHR Article 8.

Those appeals were dismissed by Judge Holt in the First Tier Tribunal on 14 January 2013. In her reasons, Judge Holt dealt with the Article 8 claim on four bases, the third of which is of some significance to my decision. They are as follows: (a) an alleged interference with the right to respect for family life, which was answered on the facts because all members of the family could, it is said, return to China if the appellants were required to do so, as none of them had leave to remain in the United Kingdom. As will become clear, that interlinks with the third ground; (b) the mother's mental state, as alleged, which was said to be wholly inconsistent with her conduct during the proceedings, and the lack of evidence from the father, which was such that it tended to undermine the mother's case in that regard, namely as to the first appellant's care of her granddaughter; (c) the care of the granddaughter by the first appellant, which, according to uncontradicted evidence before the Tribunal from a qualified social worker, was to the effect that the primary bond and primary care of the granddaughter was with and by the first appellant; and (d) the child's educational future, which would be compromised were she to return to China.

Upper Tribunal Judge McCarthy held that the Secretary of State had no power to make the removal decisions and accordingly that the appeal against the First Tier Tribunal on that ground must be allowed. He set aside Judge Holt's decision and remade it. Judge McCarthy reviewed the Article 8 inquiry and the balance undertaken by the First Tier Tribunal and found no error. The error that could have been asserted, which is pursued before this court this afternoon, is that the grandchild's independent position on the facts was not adequately addressed by either the First Tier Tribunal or by the Upper Tribunal; namely, if the primary bond is between the child and her grandmother, what in fact is going to happen if the grandmother is removed and the child does not follow her?

It is perhaps unsurprising that this circumstance has arisen given that Judge Holt did not believe the child's mother and did not hear evidence from the father. Mr Jagadesham submits to this court this afternoon that that was because the parents of the child had disengaged from the tribunal process. There is accordingly a factual issue which would not ordinarily be susceptible of a second appeal to this court, but which places the decision of the First and Upper Tribunals in a critical and fragile position. If it is the case that neither tribunal addressed the Article 8 issues on the facts, then either or both of them may well have committed an error of law.

On the assertion that the Secretary of State has failed to comply with the agreement contained in the judicial review consent order, to which I have made reference, there is probably no case to answer. That is because the Secretary of State was entitled to pursue her decision to enter into the consent order in the way in which she did. She made a new decision on the facts which is incontrovertible and it may well be that that was not susceptible of an appeal to the First Tier Tribunal if there is no jurisdiction in that tribunal.

Judge Holt and Judge McCarthy point out that the appellants' leave had expired in March 2010. Judge Holt undoubtedly fell into an error of law by not considering the effect of that circumstance if it is right. Judge McCarthy dealt with the issue at paragraphs 13 to 17 of his reasons. If there was no leave to vary, then the Secretary of State had no power in law to make a decision refusing to vary leave and accordingly could not have made section 47 removal directions. Mr Jagadesham points out that section 86(4) of the Nationality, Immigration and Asylum Act 2002 is not intended to cover a circumstance where removal is by administrative direction. If he is right, then it may well be that the First Tier and Upper Tribunals fell into an error of law in their construction of section 86(4).

I would not on this limb alone have been persuaded to grant permission, but given the clear issue that arises in relation to the grandchild's Article 8 ECHR rights, I am going to leave this issue also to be considered by the full court, namely whether administrative removal does fall to be considered under section 86(4) of the 2002 Act and accordingly whether there was jurisdiction in the First Tier Tribunal or the Upper Tribunal which will answer the question whether the Secretary of State had power to make the removal direction that she did.

Accordingly I give permission and shall make a direction that there be an expedited transcript of these short reasons at public expense. I shall direct that the matter be heard by a full court of three judges, one of whom shall have experience in immigration and asylum matters. The estimated length of hearing is half a day.