Koussa, R (On the Application Of) v Secretary of State for the Home Department

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal following my earlier refusal on paper.

The Applicants, Mr and Mrs Koussa, are both nationals of Mauritius. The first Applicant, Mrs Koussa, came to this country in April 2005 as a student. The second Applicant came here in October 2005 her dependant. Mrs Koussa was originally granted leave to remain for a limited period, but that leave was subsequently extended until it finally expired on 12 April 2013.

In early April 2013, she submitted an application on behalf of herself and her husband for leave to remain in this country on the grounds of an established right to family and private life which she submitted would be unlawfully interfered with if they were removed from the United Kingdom.

On 6 April 2013, a new form and a new fee for applications of that kind were introduced. Because the new form had been made available to the public only on that very day, transitional provisions were put in place allowing the use of the old form for a limited period. But the new fee had been announced on 25 February 2013 and it came into force immediately on 6 April.

The Applicants say that they posted their application to the Home Office on 5 April using the old form and enclosing the payment of the fee that was then applicable. There is some dispute about that, because the Secretary of State says that the application was not received until 9 April and must therefore have been posted shortly before, probably on 8 April. However, I am prepared to assume that what they say is correct and that it was actually dispatched on 5 April.

In due course, the Secretary of State rejected the application on the basis that the Applicants had failed to pay the correct fee which by then had increased. She therefore declined to deal with it on the merits.

The Applicants resubmitted their application on 20 April enclosing the new higher fee, but on 16 May the Secretary of State again refused the application, this time on the grounds that neither of them fulfilled the relevant eligibility requirements under the Immigration Rules. By the time the fresh application was submitted, the Applicants' leave to remain had expired so they had no right of appeal against the Secretary of State's decision.

They therefore began proceedings for judicial review both of the decision on 17 April and that of 16 May. The grounds on which they sought judicial review were, in summary, first that the decisions were unlawful in themselves and secondly that by wrongly treating the Applicants' first application as defective, the Secretary of State had deprived them of a right of appeal and thereby of the benefit of section 3C of the Immigration Act 1971 under which their leave to remain would otherwise have continued pending the determination of any appeal.

Permission to proceed with the claim for judicial review was refused on paper, but was renewed at an oral hearing before the Upper Tribunal. Upper Tribunal Judge Jordan, who heard the matter, refused permission to proceed on the grounds that the Secretary of State's decision of 16 May was not seriously open to challenge and that even if she had been wrong to treat the first application as defective, an appeal against its rejection would inevitably have failed so that there was nothing to be gained by judicially reviewing it.

The Applicants now seek permission to appeal against the refusal of permission to proceed with their claim for judicial review. The grounds of their appeal are, in summary, first that they had submitted their original application on 5 April before the new fee became applicable and it was therefore not defective. If the Secretary of State had refused it on the merits they would have had a right of appeal and their leave to remain would have continued pending the determination of the appeal, thus enabling the first Applicant to enrol on another course with an approved provider. Second, that it was unfair to treat the Applicants as having no right of appeal since that would also have given them a chance to put forward other grounds under the so-called “one stop” provisions in section 120 of the Immigration, Asylum and Nationality Act 2002, to support their application for leave to remain. Third, that the Upper Tribunal was wrong to hold that the claim under Article 8 would inevitably have failed.

In the light of the Applicants' evidence and the fact that their application appears to have been received by the Secretary of State on 9 April 2013, I think it is right to proceed, as I have said, on the basis that it is at least arguable that the application was made before the change in the fees took place on 6 April.

If that is the case, the Secretary of State was wrong to treat the application as defective and the second application as having been made after leave to remain had expired. In that sense, it can be said that the failure to deal with the application on its merits deprived the Applicants of an ability to appeal against the decision. However, that was of no consequence unless an appeal would have had some prospect of success. This was the basis upon which the Upper Tribunal, Upper Tribunal Judge Jordan, refused permission.

The difficulty for the Applicants is that their case depended entirely on showing that removal would involve a disproportionate interference with their right to respect for private or family life. If, when that was considered on its merits, there was no real prospect that they could succeed, the loss of the right to appeal was of no real significance. I will come in a moment to deal with the argument that they could have put forward other grounds under section 120.

In my view, it is difficult to see how their removal could involve an interference with their right to respect for family life because they would be able to enjoy a family life together in Mauritius. There is no suggestion that that would not be possible, nor is their evidence that they enjoyed other family life in this country which was entitled to be respected. The Applicants had been in this country for about 8 years at the time of the Secretary of State's decision, but only for the purposes of enabling Mrs Koussa to pursue her studies. They are in their mid-30s and both have professed an intention to return to Mauritius in due course.

Upper Tribunal Judge Jordan took the view that their claim based on Article 8 was bound to fail and in my view, on the material before him and before me, I think he was right so to hold. Although it can be assumed that the Applicants had established a degree of private life, there is nothing, in my view, to suggest that a tribunal could properly have found that it was of such a quality as to make it disproportionate to remove them to their country of origin.

Then there is the question of the one stop notice. It seems to me that the Secretary of State would have been required to serve a one stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002 had there been a right of appeal, but that, in my view, does not carry the matter any further in the absence of some reason to think that the applicants might have been able to put forward other grounds for obtaining leave to remain which stood some chance of success. I have had the benefit of the skeleton argument provided by Mr Megha on their behalf for the purposes of this hearing. He takes the point that they would have been able to put forward other grounds under a section 120 notice, but has not suggested what those grounds might have been.

The court will not entertain a decision to quash a claim by judicial review in a case where it can see that to do so would confer no practical benefit on the Applicant or on the public at large. In those circumstances, I do not think it is arguable that Upper Tribunal Judge Jordan was wrong to hold that the claim for judicial review had no real prospect of success and for those reasons, permission to appeal must be refused.