DP (Mauritius) v Secretary of State for the Home Department

LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the refusal of Underhill LJ on paper to grant permission to appeal in these cases.

There is one notice of appeal issued by Mrs DP and there is an undertaking to the court by the solicitors that they will within 7 days issue such number of notices of appeal as are required for this court to consider the cases of the other three members of the family and in addition, to pay the requisite fee.

The undertaking has been framed in this form to allow for the possibility that individual notices of appeal are not required, but I have proceeded on the basis that they will be required. But I have also proceeded on the basis that they are before me, that those cases have been listed before me this morning and they were the cases dealt with by Underhill LJ.

There are really four points, but before I say that, the position is that the family comprises the father and the mother and two children. One of the children is very young and the First-tier Tribunal said that she would easily adapt to life in the country of return, Mauritius. There is really no way of challenging that and she has not really played any part in the argument.

The argument has really revolved around the fact that the older daughter, Y, has now been here over 7 years, but at the date of the application on which the Secretary of State made her decision, she had not been here 7 years.

There are four grounds. The first was that I should look at the grant of permission to appeal by my Lord Underhill LJ in a case called Kansara, C4/2014/1693. I do not find any assistance in this order.

First, there is no formal adjudication by Underhill LJ. All he is doing is granting permission. Second, I do not have all the papers in the case. It is quite apparent that the order he was making was to give effect to an offer which the Secretary of State had made to consent to remittal to the Upper Tribunal. So the circumstances were very different and as I say, there is no ruling with reasons which would assist in the resolution of this issue.

So I turn to the second ground. It has been argued before me that, although it is now clear, following the decision of this court in Singh v Secretary of State, which set of rules applies, there is a conflict between the rules and section 85 of the Nationality, Immigration and Asylum Act 2002 so that the Tribunal was required on hearing the application to take into account that, by the date of the hearing, Y had in fact been here 7 years and that that would have put her into a privileged position under the applicable rules.

So to break that down, this court in Singh decided, and here I summarise, that where an application for leave to remain in the United Kingdom on the basis of family or private life had been made before 9 July 2012 and was determined after 5 September 2012, then the application was governed by the Rules as amended by HC 194 and HC 565.

The point is that there had been rule changes on 9 July 2012 and further rule changes in September 2012. The application in this case was February 2012 and it was on that date that Y had not been here 7 years. She did not reach that 7 years until December 2012. The adjudication of the First-tier Tribunal in this case was on 17 December 2013, so that by the date of that hearing, she had indeed been here 7 years.

The applicable rules adopted in July and December 2012 provides in rule 276ADE(iv) that if a person has been here 7 years at the date of the application, they have grounds for leave to remain "if it would not be reasonable to expect them to leave the United Kingdom". So that states a higher burden to be met if leave to remain is refused.

As I have explained, this case has very much revolved on Y's position, because if she is able to remain then the rest of the family would say that it would be a violation of their right to family life for them to be removed and not Y. Indeed, it would be also a breach of Y's right to family life. I should say that all the Appellants are Mauritian citizens.

What is sought to be argued is that section 85 specifically requires to be taken into account the matters (that is, the factual matters) at the date of the hearing. I do not have the section in front of me, but I am certainly prepared to accept that from counsel. That would be the normal rule.

But firstly, the First-tier Tribunal did look at the length of time that Y had been here. Secondly, if it is being argued, as I believe it is, that rule 276ADE(iv) would have given her some particular benefit, then in my judgment it is not arguable that that is a matter to which section 85 applies. It is not a factual matter at all. It is a legal rule and it is a legal rule which does not apply to her because she did not qualify under the rule at the date of the application.

So I regard that point as unarguable and not one on which I could give permission to appeal. It would indeed, in my judgment, be undermining the intention of Parliament in rule 276ADE(iv) to use it where the 7 years was achieved not at the date of the application, but at some later date. As I have said, I regard that point as unarguable.

The next point is this. When the matter came before the First-tier Tribunal and the First-tier Tribunal conducted a consideration of the best interests of Y, the Tribunal made it clear to the parties that it was not satisfied that all inquiries that could be made had been made. But the decision records that both parties indicated:

What is being argued in front of me is that consent given by the Appellants was on the implicit basis that, if the decision went against them, they would be entitled to revisit the consent which they had given to the First-tier Tribunal to decide the matter.

Firstly, there is no record of that. Secondly, as I see it, it is a remarkable submission. A hearing before the Tribunal is not a dress rehearsal or a conditional hearing. It is the first and last night of the performance. The parties cannot come to this court to ask to set aside a decision which they had agreed should be made on the sole basis that it went against them. A consent of this kind simply has to be upheld as a means of being a proper dispatch of justice and I have no doubt that this is not a ground on which I can give permission to appeal.

The final matter, ground 4, was that the Tribunal had not properly conducted a balancing exercise. I was taken through the decision in some detail.