AJ (India) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Etherton,Sir Mark Potter |
| Judgment Date | 27 July 2011 |
| Neutral Citation | [2011] EWCA Civ 1191 |
| Docket Number | Case Nos: C4/2010/2624 (AJ); C4/2011/0493 (SP); C5/2011/0505 (EJ) |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2011 |
[2011] EWCA Civ 1191
Lord Justice Pill
Lord Justice Etherton
Sir Mark Potter
Case Nos: C4/2010/2624 (AJ); C4/2011/0493 (SP); C5/2011/0505 (EJ)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL (SP & EJ)
[AIT Nos: IA/07028/2010 (SP); IA/35620/2009 (EJ)]
ON APPEAL FROM THE HIGH COURT OF JUSTICE (AJ)
(MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Zane Malik (for SP and AJ) and Ms Shivani Jegarajah (for EJ) (instructed by Messrs Thompson and Co) appeared on behalf of the Appellants.
Ms Susan Chan (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
SP a nd EJ have permission to appeal against decisions of the Asylum and Immigration Tribunal ("the tribunal"). AJ seeks to quash a decision of the tribunal by way of judicial review and has been granted permission to appeal against the decision of Ouseley J refusing to do so.
Sullivan LJ has directed that the three appeals be heard together. Granting permission to appeal to AJ on 17 June 2011 he stated:
"It seems to me, however, that it is desirable that the issues raised in this case as to the applicability of section 55 of the Borders, Citizens, and Immigration Act 2009 ("the 2009 Act") and the Supreme Court's decision in ZH Tanzania [2011] UKSC 4 to non-appealable decisions by the Secretary of State which are then considered in judicial review proceedings in the Administrative Court should be considered together with the same issues as are raised in respect of appealable decisions and have gone on appeal to the Upper Tribunal in the cases of SP (India) and EJ (Nigeria)."
Sullivan LJ added:
"It does seem to me desirable that the impact of section 55 of ZH should be considered across the board."
When he granted permission Sullivan LJ was aware that the Secretary of State had indicated that she would grant to the appellant, AJ, his wife and three children, all of whom are British citizens, discretionary leave to remain for three years. Sullivan LJ was also aware that:
"In the case of EJ (Nigeria) the Secretary of State has offered to grant some form of leave to the appellant"
Elias LJ, who granted permission to appeal to EJ on 19 April 2011, observed:
"It is arguable that none of the courts below have given sufficient weight to the interests of the child, as required now by the decision in ZH (Tanzania)."
ZH was decided after the decisions of the Secretary of State under challenge had been made. The Secretary of State has offered a remittal to the tribunal in EJ for"…a fresh consideration of Article 8 ECHR proportionality assessment to be undertaken ". No relief has been offered to SP and the court will hear his appeal.
In submitting that the court should also hear the appeal of EJ where relief has been granted, Ms Jegarajah submitted that Sullivan LJ had given permission to appeal. He had done so for good reason. It is submitted that in assessing the significance of section 55 of the 2009 Act, the court should have a range of factual situations to consider. Moreover there was a danger, it was submitted, that the Secretary of State could otherwise select cases for consideration which were best in her interests. It is also submitted that the facts are so clear in EJ that the court can allow the appeal without the need to remit to the AIT for further factual assessment.
As indicated at the beginning of the hearing, the court did not accept those submissions. The court can express any views on section 55 it wishes to express in the appeal of SP. The application of section 55 will be fact-sensitive and, relief having been granted, a decision on the present facts in EJ would be academic. If and when relief has to be sought by EJ at a future date, the facts are likely to have changed. We are unpersuaded that the case is so clear that a decision in EJ's favour could be made without the need for remittal to the tribunal. The appellant seeks to bring additional facts into consideration and these should be considered, if the matter arises, by the tribunal as the fact finding body, along with other evidence. Further, we detect no sign that the Secretary of State is likely to act unfairly by seeking to avoid judgments in cases considered unfavourable to her.
The position in AJ, where relief has been sought by way of judicial review, is different. AJ is an overstayer. On 3 January 2009 he applied for leave to remain in the United Kingdom on the basis of Article 8. The application was refused on 3 July 200 That was a non-appealable decision because it did not include a decision to remove AJ and was not therefore an immigration decision for the purposes of section 82 of the Nationality Immigration and Asylum Act 2002. AJ's challenge to the decision is by way of judicial review, and the question arises whether the same approach to section 55 of the 2009 Act is appropriate in the context of non-appealable decisions when the challenge is by way of judicial review. A legal point, which may be of some general significance, thereby arises.
The court was not prepared to consider the issue at the hearing, for which one day had been allotted, for lack of time and also because the point had not been addressed in the otherwise detailed written submissions on behalf of the Secretary of State.
Accepting that resolution of the point is reasonably required, the court, on being presented with an agreed question and an agreed statement of facts, decided, with the consent of the parties, to consider the point on the basis of written submissions to be submitted within 14 days.
SP
SP, a ged 33 and his wife, DP, are Indian nationals. He arrived from India on 6 April 2003 with a visitor's visa and DP arrived shortly afterwards. His visa expired and SP became an overstayer. On 26 June 2008 he applied for leave to remain on Convention grounds, Articles 2, 3 and 8. He did not apply for asylum. DP's application was made dependent on his. On 24 July 2008 DP gave birth to a son, D.
The application to remain was refused on 19 January 2010 and directions for removal issued. It was stated that the appellant and his spouse could return to India together as a family unit. The appellant could seek employment there. He had spent most of his life outside the United Kingdom. The existence of the child had not been brought to the Secretary of State's attention. SP's appeal was considered by the tribunal, on the papers, at the appellant's request. One of the grounds of appeal was the birth of the son. In relation to Article 8 the Immigration Judge stated, in a determination promulgated on 27 August 2010:
"18. I have considered whether the proposed removal of the appellant would be an unlawful interference by a public authority with the exercise of the appellant's right to respect for his family and/or private life. It is apparent that the Secretary of State's decision will have consequences of some gravity for the appellant in terms of his family and private life not least because he will be required to leave his home in the UK and return [to] India. His son was born here and there would be inevitable disruption in the lives of the 3 family members who would be uprooted from their current home and neighbourhood."
19. I have considered the appellant's personal history and have noted that, according to [the] submission made in the solicitors letter, the appellant has business premises in India. It would appear from this that he has financial interest and family members in India.
…
25. I take into account the fact that the appellant is a citizen of India, as are all his closest family members. I also take into account the not unimportant fact that the appellant will not be separated from his wife and child as neither he nor his wife have leave to remain and the family, if removed from the UK would be removed altogether.
His child is not old enough to attend school and there is no question of disruption of education.
26. Although the appellant may be used to life in the United Kingdom where he has lived for seven years, he lived for about 25 years in India before moving here. The reason for him being allowed to enter has long expired. He and his wife are used to the customs, language and social background of India. He appears to have had a business there and it would appear from this fact that he would be able to earn an income for his wife and son.
27. I take the view that the balancing exercise which I undertake must take into account the effect of the decision on the appellant in terms of the family and private life, as well as the desirability that the respondent should exercise immigration controls fairly and in accordance with the published immigration rules. In this case the application was made at a time when the appellant's leave had long expired. His wife's appeal is dependent on his and there is no question of them being separated. His child is of an age where education would not be disrupted and no strong ties have been established with anyone other than his parents. Importantly the appellant has not provided any evidence to the Tribunal in support of his claim. No compassionate grounds, health issues or domestic issues have been highlighted in support of this appeal. The respondent appears to have applied his own policy consistently and has given consideration to the factors set...
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