NC (Zambia) v Secretary of State for the Home Department

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

The Applicant, Mrs C, seeks permission to appeal against the decision of the Upper Tribunal dismissing an appeal against the determination of the First-tier Tribunal that removal from the United Kingdom would not breach her rights under Article 8 of the European Convention on Human Rights.

The Applicant is citizen of Zambia who entered this country in February 2007 as a Tier 4 (General) student migrant. Her leave to remain was extended on a number of occasions until 8 October 2012. On 26 September 2012 she applied for further leave to remain as a student.

On 7 March 2013 the Secretary of State refused her application on the basis that she failed to meet the maintenance requirements set out in Appendix C to the Immigration Rules. At the same time she gave notice of a decision to remove her under section 47 of the Immigration, Asylum and Nationality Act 2006.

The Applicant appealed against both decisions. The First-tier Tribunal dismissed her appeal against the refusal of leave, but purported to allow the appeal against the removal decision, despite the fact that by that stage the decision had been withdrawn.

The First-tier Tribunal took the view that since the Applicant was no longer at imminent risk of removal, it was unnecessary to consider whether removal would in fact constitute a disproportionate interference with her Article 8 rights. On appeal, the Upper Tribunal found that the First-tier Tribunal had erred in law in taking that course and remitted the matter to it to enable it to consider the Article 8 claim.

When the matter came back before the First-tier Tribunal, the Applicant accepted that she could not satisfy the requirements of the Immigration Rules. The First-tier Tribunal, however, considered the claim outside the Immigration Rules and concluded that removal would be lawful as "she has no leave to remain" and proportionate as "the Appellant is a mature adult who no longer has leave, whose husband's limited leave expires in just over a year and who also has family links to Zambia."

The applicant appealed again and by that route the matter came back before the Upper Tribunal. The Applicant argued that the determination of the First-tier Tribunal was distorted by an understanding that she was an overstayer, whereas in fact her leave to remain had been extended under section 3C of the Immigration Act 1971 while her appeal was being considered.

The Upper Tribunal found that there had been no material error in the determination of the First-tier Tribunal. It was, in its view, evident from the determination as a whole that it had been well aware of the correct position and had proceeded on that basis. It therefore upheld the determination and dismissed the appeal.

The Applicant now seeks permission to appeal on two related grounds. The first is that it was not open to the Upper Tribunal to find that the confusion about the Applicant's immigration status had not influenced the First-tier Tribunal's decision. Second, that the Upper Tribunal itself erred in finding that the First-tier Tribunal had not made a material error of fact when its determination contained a glaring and recurring misstatement of the Applicant's immigration status.

This is an application for permission to appeal from a decision of the Upper Tribunal and therefore the Applicant must satisfy the court that an appeal would raise an important point of principle or practice or that there is some other compelling reason for the court to hear a further appeal. In addition, the Applicant must persuade the court that an appeal would have a real chance of success.

It is well-established that a Tribunal decision, like a judgment, must be read fairly as a whole and must not be subjected to detailed linguistic analysis. When one reads the decision of the First-tier Tribunal as a whole, it is, in my view, clear that it was under no misapprehension about the Applicant's immigration status.

When it said that she had no leave to remain, it clearly intended to refer to the expiry of her grant of leave to remain as a student. No issue had been raised to which section 3C was relevant. There is no reason to think that the Tribunal, which as an expert body would surely have been aware of the effect of section 3C, was seeking to suggest that it did not apply in this case.

In my view, the Upper Tribunal was fully entitled to find that there was no material error of law in the determination of the First-tier Tribunal and for that reason I do not think that an appeal would have any real prospect of success. Quite apart from that, however, it would not raise an important point of principle or practice and there is no other compelling reason for this court to hear a further appeal.

For those reasons, permission to appeal must be refused.