HS (India) v Secretary for the Home Department

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal following refusal on paper by the Single Lord Justice. The applicant seeks permission to appeal against the determination of the Upper Tribunal, promulgated on 5 February 2014, by which it dismissed the applicant's appeal against the decision of the First-tier Tribunal to uphold the respondent's decision to refuse him indefinite leave to remain in the United Kingdom in order to safeguard his rights under Article 8 of the European Convention on Human Rights.

The applicant is a national of India now aged 51 who came to this country in 2001 with leave to remain as a visitor until 6 March 2002. When his visa expired he remained here as an overstayer until November 2010 when he applied for leave to remain on the grounds that removal would violate his rights under Article 3 of the Convention. His application was refused in December 2010, but nonetheless he remained in the United Kingdom.

On 5 July 2012, the applicant applied for indefinite leave to remain outside the Immigration Rules on compassionate grounds. The respondent considered his application, but was not persuaded that he merited the grant of leave. She therefore refused the application and issued a decision to remove the applicant by way of directions under section 10(1) of the Immigration and Asylum Act 1999. When making her decisions the respondent considered whether removal of the applicant would involve a breach of his rights under Article 8 by reference to the Immigration Rules, which had come into force on 9 July 2012. Unfortunately, however, she appears to have overlooked the fact that the change in the rules was subject to transitional provisions, which provided that an application that had been submitted, but not decided, before 9 July was to be decided in accordance with the rules previously enforced. It followed that her decision was not in accordance with the law because she had applied rules which did not in fact apply to the application before her.

The appellant appealed again the respondent's decision. The First-tier Tribunal did not become aware of the error when the matter was before it. In the event, however, it did not confine itself to considering the application by reference to the new rules, but carried out what might be called a full Razgar analysis applying the five-stage test set out in R v (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27. The First-tier Tribunal found that the applicant had no family life in this country sufficient to engage Article 8, but that removal would amount to an interference with his private life. Nonetheless it considered that the interference would be a consequence of applying ordinary immigration decisions which had been made in accordance with the law, and which were proportionate to the public interest in preserving orderly and fair immigration control. On that basis the First-tier Tribunal dismissed the appeal.

The applicant appealed to the Upper Tribunal where the respondent's error in relying on the Immigration Rules that had come into force on 9 July 2012 was identified for the first time. Indeed, I think it is right to say that it was the only ground of appeal. Counsel for the applicant submitted that the jurisdiction of the First-tier Tribunal, in the circumstances of that case, was limited to declaring that the respondent's decision was unlawful and remitting the matter to her to enable a lawful decision to be made. It was said that the First-tier Tribunal had not been entitled to proceed to a consideration of the Article 8 claim on its merits.

The Upper Tribunal rejected that proposition. It reminded itself of the approach to evaluating claims based on Article 8 of the Convention, as set out in Razgar. It construed the determination of the First-tier Tribunal as including a finding that the appellant did not enjoy family life in this country, but that removal would involve an interference with his private life which was both in accordance with the law and proportionate, and upheld the decision.

The Tribunal accepted that the respondent's decision had not been in accordance with the law because she had applied the wrong rules. Nonetheless it considered that the First-tier Tribunal had comprehensively considered the claim by reference to the detailed material before it. The only question for decision, therefore, was whether the First-tier Tribunal had been entitled to make the decision on the appellant's application for leave to remain, or whether its powers were restricted to remitting the matter to the respondent to enable her to make a fresh decision.

The Upper Tribunal pointed out that the range of unlawful decisions is very wide and that if the tribunal could not itself determine the matter its powers would be seriously undermined. It held that the relevant tribunal, including the First-tier Tribunal, is prevented from deciding the matter only when the application under consideration depends on the exercise of a function vested in the decision-maker alone, such as the exercise of discretion. It considered that in this case the applicant had in effect made two applications: one for discretionary leave to remain outside the Immigration Rules and another for leave to remain on Article 8 grounds. It was, in its view, open to the First-tier Tribunal to correct any error made in relation to the latter claim. Nonetheless, the Upper Tribunal was alive to the fact that the First-tier Tribunal's analysis might have been affected by the belief that the new rules applied to the Article 8 claim. It therefore made a fresh decision expressly recognising that the new rules had no bearing on the appeal. It found that the decision to remove the applicant was proportionate and that there was no point in requiring the Secretary of State to reconsider the application outside the Rules because there was no prospect that she would reach a different decision. It therefore declined to set aside the decision of the First-tier Tribunal.

There is only one ground of appeal in this case which was first put, as is necessary, to the Upper Tribunal in support of an application for leave to appeal to this court. It is that on the proper construction of the appeal provisions in the Nationality, Immigration and Asylum Act 2002 it was not open to the Upper Tribunal to dismiss the appellant's appeal once it had found that the immigration decision of the Secretary of State was not in accordance with the law.

The Tribunal accepted that that raised an important question of law, but it considered that the prospects of succeeding on that ground of appeal were insufficient to merit the grant of permission and that there was no other reason compelling, or otherwise, for this court to hear an appeal.

This of course is an application for permission to appeal against a decision of the Upper Tribunal, so the more stringent test, which is reflected in the reasons given by the Upper Tribunal for refusing permission to appeal, applies to this case.

The appellant's skeleton argument suggests that the grounds of appeal raise two points: one in relation to the construction of the 2002 Act and a second in relation to whether a decision, which is found to have been unlawful by common law standards, is necessarily incompatible with Article 8 if Article 8 is engaged at all. These are said to be questions which were raised, but not determined, in a number of previous cases both before the Upper Tribunal and before this court.

I have some sympathy with the view of the Upper Tribunal that the prospect of a successful appeal in this case may be somewhat smaller than Mr Sharma, who has appeared for the applicant, would suggest. Nonetheless, it seems to me that the grounds of appeal do raise an important question of law and one which it cannot be seen on first examination is bound to fail. In those circumstances I am persuaded that the question ought to be authoritatively determined by this court and I shall therefore grant permission to appeal.