Khan, R (On the Application Of) v Secretary Of State For The Home Department & Anor

1. MR JUSTICE OUSELEY: These cases have been listed together in order for certain practical guidance to be given about the way in which judicial reviews of non-appealable decisions of the Upper Tier should be handled, notably those in which the Upper Tier has refused permission to appeal to the Upper Tier and that refusal is the subject matter of challenge. I am not essentially concerned with laying down principles of law as to the reviewability or the basis of review. That is because the reviewability and broad principles were laid down by the Supreme Court in Cart v The Upper Tribunal [2011] UKSC 28, and because the nature of the second appeal test as it applies to immigration and asylum cases has been the subject matter of specific consideration by a Court of Appeal comprising the Master of the Rolls, the President of the Queen's Bench Division and the Senior President of Tribunals in PR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 988. They have laid down the clearest possible and binding guidance on the approach to second appeals and in particular the approach to be adopted to the second limb, namely other compelling reason. The decision of the Court of Appeal is authoritative in relation to challenges to refusals of permission to appeal to the Upper Tier, and indeed in relation to challenges to other non-appealable decisions of that nature.

2. There are a number of issues to which these four cases give rise in common about which I propose to make some comments. Cart was decided on 22 June 2011. PR (Sri Lanka) was decided on 11 August 2011. There are a number of cases seeking permission to apply for judicial review of refusals of permission to appeal, either at the paper stage or at the renewal stage, which appear not merely not to have discovered the decisions of the Supreme Court and the Court of Appeal to which I have referred, but appear to ignore the effect of the decisions of the Court of Appeal and the Divisional Court in earlier stages of the Cart proceedings.

3. Whatever may have been the justification for the terms in which proceedings were started before the decision in the Supreme Court and the decision in PR (Sri Lanka) , there is no excuse for permission applications coming before judges, or renewal applications coming before judges, which retain the old formulations as might have been seen in applications for reconsideration or statutory review.

4. In three out of these four cases, the applications had proceeded and the renewal applications proceeded, and they came to court as if the Supreme Court had not pronounced at all and PR (Sri Lanka) had never been decided. Whatever may be the position in relation to resources, that is in my judgment inexcusable and will not be accepted. Cases that come in that form can expect to be refused straight away. It is for the claimants to apply for permission to amend their grounds and to formulate in that application for permission to amend their grounds the points that they say warrant permission being given on second appeal grounds. It is not acceptable for the radical changes which are required to be made by way of last-minute skeleton arguments. I heard argument in the three cases to which it was relevant as an indulgence. It would be quite wrong for future cases to be so indulged.

5. When applications for permission are made, claimants should be aware that there is no justification for supposing that the requirement for promptness will be ignored. The courts are well aware of the potential for the abuse of its procedures by late applications for judicial review, even if made within the three-month period. The courts hearing applications will be aware of the time limits that used to apply in relation to statutory review and reconsiderations. I do not accept what Miss Appiah said about the amount of time that is required for a proper application for permission to be made following an adverse decision by the Upper Tier. If more time is required than the seven days granted for renewal of an application to the Upper Tier following a refusal by the FTT, it is difficult, in my view, to imagine a case in which a period exceeding one month could be justified, absent very special reasons. That is not to say that any period up to one month would be regarded as prompt.

6. The grounds, when lodged, should address the issues to which Cart and PR (Sri Lanka) give rise succinctly and in a focused manner. By nature, an important point of principle or practice has to be capable of being expressed very shortly, with supporting references so far as necessary, to demonstrate that that issue is a correct formulation of an issue which does arise in practice in the case. The "other compelling reason" with a high prospect of success should equally be capable of succinct summary. That applies to the initiation of proceedings. Indeed, the existence of such points ought to be apparent from the grounds for permission to appeal to the FTT from its decision, and the renewed application to the Upper Tier. It is difficult to see how, in a case in which it is said such a point arises, the point has not been raised in such terms in the application to the Upper Tier anyway.

7. That application should be supported by the minimal documentation required to make it good: the immigration judge decision, the two decisions of the Tribunal (that is the FTT and the Upper Tier refusing permission) and the grounds of appeal placed before them. I make the latter point because it is, as is the case in one of the cases here, sometimes necessary to see the point that was raised to understand fairly what it is that the SIJ is saying about it. Further documentation may be required, but real thought has to be given as to whether the court has to be burdened with it in order for the point raised properly to be understood. There were 333 pages in one of the cases before me. There is no reason for that to be so at all.

8. If a case is dealt with orally, the parties can expect, before any rule changes are made, that the oral side will be short. The Supreme Court envisaged that there will be a single paper procedure. That requires a rule change. The Supreme Court was aware of the potential for the abuse of this process by those seeking to delay the effectiveness of a decision. The claimants who bring such proceedings must recognise the importance of those strictures, make sure that the points they want to make are made clearly and succinctly on paper, and cannot expect on a renewal application that they will be able to elaborate at any length. Likewise, if a claim is refused on paper and for so long as oral renewal is available, claimants must consider properly whether there truly is a case for renewal. As I shall say, in this case it is far from clear that a mind was ever applied until the very last minute to that. The renewal claims were just thrust in.

9. I remind those who do that that there are costs powers which the court has, both under CPR 44.14 for unreasonable renewals or unreasonable claims, and that Mount Cook costs may be awarded in respect of hopeless, persistent or abusive renewals. Cases may be marked as totally devoid of merit.

10. I now turn to the individual cases. In the case of Khan, the appellant is a doctor, a specialist in gynaecology and obstetrics, whose most recent period of leave was as the dependant of a student. She said that she qualified under paragraph 245ZF of the rules, but it was agreed that she could not and she appealed under Article 8. The immigration judge rejected that claim. It was said that he had ignored in his analysis of her Article 8 claim the import of several letters placed before him from doctors who were colleagues of hers at the hospital, who pointed to her skill, the costs they had incurred in training her, and the need the Health Service had in that area for someone with those skills because of the difficulty of recruiting others to replace her. Those factors in relation to broadly speaking the public benefit are not irrelevant to Article 8, as the case of UE (Nigeria) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 975 held, and as is in effect summarised shortly in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719 at paragraph 45, which looks at the implications for a claimant and for the United Kingdom. The immigration judge referred to those letters in his decision, summarising correctly their effect, referring to what Sedley LJ said in Pankina , and commenting on it in paragraph 21 briefly. It was contended that he had really not accorded the weight to the public interest aspect of her Article 8 rights, which the evidence before him impelled. The First–tier Tribunal senior immigration judge refused permission to appeal, saying that the ground disclosed no arguable error of law, it was clear that the judge was well aware of the appellant's employment and of the wish of her employers to retain her services, and it was for the judge to give that the weight he saw fit.

11. The next stage was a renewal of the application, this time including the criticism that the Tribunal had ignored the case of UE (Nigeria) . It is said that the senior immigration judge too had not given consideration to the relevant passage. It is in that context that on 10 February 2011, Senior Immigration Judge Gill said there was no substance to the renewed grounds which repeated the same arguments, albeit by drawing anecdotal support from UE (Nigeria) not referred to in the original grounds. She went on to agree with the decision of Senior Immigration Judge Waumsley and adopted his reasons.

12. Even had this been a decision to which the second appeal criteria did not apply, it would have been difficult to see that the grounds showed an arguable error of law. To my mind, it is incontestable that they do not show a case that constitutes either other compelling reasons, or one that has any real prospect of success. This is not a case in my judgment which could or should have been brought, had the Cart position been properly appraised. The fact that the decision will have consequences for the appellant which she would rather not have, and that there may be disadvantageous consequences in relation to the gynecological service in that part of the country where she was employed, do not amount to other compelling reasons at all. That renewed application is accordingly refused.

13. Jassi made an application for leave to remain shortly before his leave as a student expired. The basis for his application was as a Tier 4 (General) student. This was refused on 21 October 2010. An appeal was lodged on 9 December 2010 and heard on 10 January 2011 before Immigration Judge Carroll, at which hearing it was accepted that the appeal, as it had originally been formulated, was hopeless because the claimant did not meet the requirements for a grant of leave as a Tier 4 (General) student. Shortly before the hearing, he had provided to the Tribunal a written statement headed "Statement of additional grounds pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002." The basis for this was that, after the Secretary of State's decision in relation to the Tier 4 (General) application, he had been awarded a master's degree in biotechnology and had had a balance of over £800 in his bank account for the previous 90 days. He said this entitled him to remain under the Tier 1 (Post-Study Work) migrant category. The immigration judge dealt with that in this way. He said that the appellant had not mentioned this Tier 1 claim in either his grounds of appeal or his witness statement dated 29 December 2010:

"The belated attempt to switch to another category is, in my view, wholly opportunistic. There is no evidence to show that the statement of additional grounds has been served upon the respondent or that the respondent has had any opportunity to comment upon the proposed alternative application."

14. The respondent was not in fact represented at the hearing. The senior immigration judge at the First–tier Tribunal considered that the immigration judge was entitled to find as he did, concluding that the decision relied on by the appellant, which was AS (Afghanistan) & NV (Sri Lanka) v SSHD [2009] EWCA Civ 1076, did not require the Tribunal to consider the section 120 statement as a reformulation of the original ground. That led to a further challenge in which the appellant said that there was no time limit on the submission of a section 120 statement, that the decision in AS , to which I have referred, meant that the Tribunal had jurisdiction and was obliged to hear the application, and that there was no requirement for the appellant to prove that the statement had been served on the Secretary of State.

15. On 22 June 2011, the senior immigration judge in the Upper Tribunal refused the application for permission to appeal, saying that notice of the hearing had been sent out on 18 November 2010, and no previous mention of the statement of additional grounds had been made before the hearing:

"The usual directions were issued with the notice of hearing requiring documents to be submitted in advance and copied to the respondents. There was no evidence the directions had been complied with. It was for the representatives to demonstrate compliance. Although it is now asserted that the material was served on the respondents, no copy of correspondence to support that claim has been lodged. The practice directions are there for a good reason. The judge was perfectly entitled to find the late service of the statement opportunistic and reject it."

16. I note that, for the purposes of this claim, the practice directions and the Tribunal Procedure Rules were not referred to in the grounds. They should have been. However, Senior Immigration Judge Warr continued:

"The renewed grounds of appeal were received out of time. I have carefully considered the explanation for the delay, but I do not find there are any circumstances making it appropriate to admit the application."

17. That basis upon which the application was refused was wholly ignored in the grounds put forward. For my part, it is a complete answer to this claim: there is a perfectly proper ground upon which the application for permission to the Upper Tier was refused. No challenge has been brought to it, and that decision is good, even if there were some other error in the decision.

18. It is important that a claimant seeking to challenge such a decision focuses on all aspects of it, and not just on one. If you lose on three grounds, each one of which is freestanding, you have to succeed on all those three grounds in order to have any basis at all for quashing the refusal of permission to appeal.

19. However, the grounds are without merit anyway. True it is that there is no time limit in section 120 for the submission of a statement of additional grounds, but the notice said that they had to be submitted now. That was the notice sent out with the decision letter. The Asylum and Immigration Tribunal (Procedure) Rules 2005 permit in rule 51(4) the giving of directions setting time limits for the filing and serving of written evidence. Mr Malik for the claimant accepts that the statement of additional grounds was not supplied within the time limits required by the directions that had been given under paragraph 45.

20. In my judgment, the immigration judge was unarguably entitled to refuse to entertain those additional grounds. He was not compelled to adjourn the hearing. He was entitled, as he pointed out, to look at the effect of the direction, non-compliance with it, and to reach the conclusion he did on it, and the senior immigration judge was entitled to draw attention to it. That is not an aspect of the decision to which any effective challenge has been mounted.

21. If there was no evidence to support the statement of additional grounds, there was no evidence; if itself it constituted the evidence, it had to be submitted in compliance with the direction.

22. But even apart from that, as Mr Blundell points out in his skeleton argument, the claim proceeds upon a misapprehension as to the relationship between two Court of Appeal decisions. The first is the decision in AS (Afghanistan ), to which I have already referred, and the second is the decision in AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833. What is clear is the issue in the latter case. At paragraph 4, Pill LJ said:

"The issue can be put succinctly. Can the points entitlement arising from a Masters degree count towards the minimum if the degree is awarded after the Secretary of State's decision but before the decision of the Tribunal?"

23. In reality, as Mr Blundell points out, that is exactly the approach that was being adopted here. The Tier 4 application failed, the master's degree and the bank material post-dated the Secretary of State's decision; it was not sought even to provide that as evidence in support of a Tier 4 application, but to make effectively an application direct to the Tribunal under Tier 1. That material is simply not available for consideration before the Tribunal. It is my judgment that there is not even an arguable error of law in that part of the decision for a variety of reasons, let alone an important point of practice or principle.

24. Mr Malik said that there was a further important point because he had argued that the Upper Tribunal ought to stay the effect of its decision and the Tribunal had refused to do so, saying that it was functus officio . Mr Malik says that it is an arguable point of practice or principle as to whether the Tribunal does have power to suspend the effect of its decision in a case of this sort, and he referred to section 25 of the Tribunals, Courts and Enforcement Act 2007. Section 25 gives to the Upper Tribunal the same powers, rights, privileges and authority as the High Court in relation to the matters specified in subsection 2, which are (a) the attendance and examination of witnesses, (b) the production and inspection of documents, and (c) all other matters incidental to the Upper Tribunal's functions. Assuming that a stay of any sort is capable of being a matter incidental in the context of subsection 2, it has to be "incidental" to the Upper Tribunal's functions. There has to be, for that section to apply, some ongoing function of the Tribunal other than the issuing of a stay. But when the Upper Tribunal has refused permission to appeal a decision here, it has no further functions and no other matter can be incidental to it. I regard the propositions as obvious. Accordingly, I do not consider that they can give rise to an important point of principle or practice, given the obviousness of the result. Accordingly, this application too is dismissed.

25. I turn next to Olawoyin. However it is put, whether as an important point of practice or procedure or as some other compelling reason, there are in reality but two points in this case. The first is that, when the FTT refused permission in October 2010, the SIJ did not deal with and did not, on the face of it, have in front of her the grounds of application for permission, because she said that the grounds that she had only addressed the decision of the Secretary of State. Nonetheless, she concluded that the Tribunal's findings were sustainable and there was no real prospect that the appeal would be decided differently.

26. The further application was considered by SIJ Storey in January 2011, who assumed that the first SIJ had not seen the grounds, but he considered them and was satisfied that there was no arguable error of law. It is said that the upshot of that error on the part of the first SIJ gives rise to an important point of principle or procedure or to other compelling reason. That is simply not so. There was, I am prepared to assume, a significant deficiency in the material before the first SIJ, although she did carefully consider the actual decision. But such defect as there was is plainly cured by the decision of the second SIJ, who was aware of the error of the first and took it into account in dealing with the decision in the way he did. The most that could be said is that there is an obligation of extra care where the second SIJ can see a significant omission on the part of the first SIJ. There is no reason whatsoever to quash the decision of the second SIJ for a second decision by a second SIJ to be taken again, still less for the matter then to go to an appeal before the Upper Tier when the only error is that an earlier SIJ did not have the full basis for refusing permission that the second SIJ actually had.

27. The second point that is made is that both SIJs appear to have operated under the misapprehension that, in relation to one aspect, the appellant's deceitful behaviour, he had not been as deceitful as they had supposed, but not the immigration judge. They both appear to have thought that the appellant had married in a false name, as opposed to in fact marrying in his true identity. In my judgment, that error does not give rise to either an important point of principle or any other compelling reason. It is perfectly clear that the reasons which they give, that apart, show a proper consideration of the case, that the error is really of no great significance. This is not a case, in my judgment, in which it can sensibly be said that the error had any effect on the decision to refuse permission. Accordingly, this application is dismissed.

28. Finally, I turn to R. The relevant decision of the Upper Tier was made on 17 December 2010. Proceedings were lodged on 17 March 2011. It is said that the reason for that lapse of time was that on 31 December 2010, the claimant went into a mental hospital and was certainly there at the beginning of March. There is no evidence as to whether he had emerged or not by 17 March. There is no basis for supposing that the circumstances of the mental illness which caused him to enter the mental hospital had any effect on a delay of that length in the initiation of these proceedings. They may warrant some delay, but nothing remotely approaching the length there was. It would not have permitted anything like such an extension, for example, between applying to the Upper Tier following a refusal of permission to appeal by the FTT. There is no evidence that he had left the hospital, or that his condition had changed by 17 March, such as only then to permit him to give instructions. In my judgment, this case was not brought promptly and there is no evidence before me that gives an explanation as to why it was not.

29. The contention is that there is another compelling reason for this court to grant permission to apply for judicial review. It is said in the skeleton argument received this morning that the immigration judge erred in two related aspects. First, the unlawful rejection of the diagnosis of mental illness by a well-qualified and respected psychiatrist, with the immigration judge taking his own view on the mental health problems, and the related rejection of the view of the psychiatrist on the reliability of the evidence which the appellant gave. Miss Jegarajah referred me, as she had before the immigration judge, to the decision of the Court of Appeal in Y & Z (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362, in particular at paragraph 12, which needs to be read, in this context, with paragraph 11.

30. The submissions do not, in my judgment, really do justice to the purport of the psychiatric report, which I have read, and even less to the purport of the immigration judge's decision. This was not a case in which the immigration judge rejected the psychiatric evidence out of hand. He did not accept the causation of the mental health problems referred to, the causation being the appellant's allegations as to what had happened to his father, not within his sight, and to what had happened to him during the course of one day's detention by the security forces in Sri Lanka, following which he was released without further action. The immigration judge did not accept the severity of the condition identified, though accepting depression. The severity of the condition was what was said to underlie the difficulty which the appellant had at interview with the psychiatrist in September 2010 in giving a coherent history of what had happened to him. But the immigration judge was fully entitled to consider what the appellant had said, not just at the screening interview, but during the lengthy asylum interview comprising 168 questions, at which he confirmed he was well and fit and had understood the questions. These two interviews took place within a short space of each other, and some three months before the psychiatric interview, which was, as the immigration judge said, based on one interview. The nature of those two processes are, of course, different to a degree.

31. The immigration judge not merely had the benefit of what was said at interview, he also had a witness statement from the appellant and such answers as the appellant was able to give in cross-examination before the appellant became distressed and was unable to answer any more questions. So the immigration judge had the advantage of seeing those events as well.

32. The immigration judge makes it quite clear as to why he does not accept the causation of what the psychiatrist sees. The psychiatrist sets out the history which leads him to conclude why it is that the appellant was exhibiting the symptoms he did. The immigration judge gives perfectly sound reasons for not accepting the credibility of the story that the appellant had told in the asylum interview and in his witness statement. The immigration judge also was entitled to point out a matter that the doctor did not appear to have been made aware of concerning the honesty of the appellant, who had claimed to be "T", when fingerprint evidence from a previous visa application identified him as "R", born six years before the 24 years he claimed to be.

33. If the immigration judge was entitled to reach the conclusion he did on causation, he was also entitled to reach the conclusion he did on the extent to which there was an accurate observation of the degree of genuinely presented symptoms. It is my judgment that the senior immigration judges are entirely entitled to reach the conclusion they reached and that the claim that there was an arguable error of law, as was the original formulation, is wrong. Manifestly, it does not become an other compelling reason with high prospects of success. This application is dismissed. This transcript may be cited in court.

34. MR BLUNDELL: My Lord, I am grateful for those judgments. There are three short consequential matters from the Secretary of State. The first is that, as indicated in the skeleton argument, the Secretary of State would ask for a contribution, it is a very small contribution, to the costs of the acknowledgements of service in each case in the sum of £90.

35. MR JUSTICE OUSELEY: Have they not been ordered in some of these cases anyway?

36. MR BLUNDELL: My Lord, that may be correct.

37. MR JUSTICE OUSELEY: In larger sums than you now seek. Robert Jay QC in R has ordered the payment of £135. I am sure they would be content if you reduced your order.

38. MR BLUNDELL: Your Lordship is quite right.

39. MR JUSTICE OUSELEY: I am not going to reverse the order, unless you want me to.

40. MR BLUNDELL: I certainly would not ask your Lordship to do that.

41. MR JUSTICE OUSELEY: In Olawoyin, the order has already been made in the sum £90.

42. MR BLUNDELL: Yes, in fact I am just looking at Jassi. There is an order for £240.

43. MR JUSTICE OUSELEY: You want £240?

44. MR BLUNDELL: That has already been made. There is no order at all in Khan, so that would be a £90 order.

45. MR JUSTICE OUSELEY: You want £90 in Khan.

46. MR BLUNDELL: We do not have anything in Khan.

47. MR JUSTICE OUSELEY: Mr Blake, you are Khan.

48. MR BLAKE: I do not dispute that.

49. MR JUSTICE OUSELEY: £90 then.

50. MR BLUNDELL: My Lord, I am grateful. The second matter is again something that was flagged up in the skeleton argument, and it is simply this: I ask that your Lordship releases the judgment from the usual prohibition on the citation of permission authorities.

51. MR JUSTICE OUSELEY: Yes, there ought to be a transcript of it and it can be cited.

52. MR BLUNDELL: I am very grateful, my Lord. The third and final point is obviously your Lordship has given some extremely useful and extremely important guidance for the bar and the solicitor profession on how these kind of cases should go forward in the future. I ask for the transcript to be expedited in those circumstances.

53. MR JUSTICE OUSELEY: Yes.

54. MR BLUNDELL: My Lord, I am extremely grateful.

55. MR JUSTICE OUSELEY: Who is paying for the transcript, says the court service, anxious and pointing its finger at another public body.

56. MR BLUNDELL: My Lord, I am not asking for a transcript at public expense, so we will pay for that.

57. MR JUSTICE OUSELEY: Thank you very much. I am just adding, but it will not apply to these four cases, but it may apply in future, that the contemplation of totally devoid of merit orders will be high on the agenda. But not in these cases, because they are the first ones off the block.