Balwinder Singh v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 22 August 2019 |
| Neutral Citation | [2019] EWCA Civ 1504 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 August 2019 |
| Docket Number | Case No: C5/2018/2424 |
[2019] EWCA Civ 1504
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE JACKSON
Appeal No IA/33331/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
Case No: C5/2018/2424
Alex Burrett (instructed by Lawise Solicitors) for the Applicant
Andrew Bershadski (instructed by Government Legal Department) for the Respondent
Hearing date: 22 August 2019
Approved Judgment
This is an application to reopen a final determination of this appeal by Sir Stephen Silber sitting as a judge of this court who, by an Order dated 11 March 2019 and sealed on 13 March 2019, refused permission to appeal.
Under CPR rule 52.30(1), despite a final determination, this court may reopen an appeal where:
(a) it is necessary to do so to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
These are pre-conditions to the jurisdiction arising. Rule 52.30(2) makes clear that, for these purposes, “appeal” includes “application for permission to appeal”.
This is an exceptional jurisdiction, to be exercised rarely: “The injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation” ( Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514; [2015] HLR 9 at [65] per Sir Terence Etherton VC, as he then was). The jurisdiction will therefore not be exercised simply because the determination was wrong, but only where it can be demonstrated that the integrity of the earlier proceedings has been “critically undermined” ( R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860; [2018] 1 WLR 5161 at [10]–[11]); and then only where there is “a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined” ( ibid at [15]).
The claim out of which this application arises concerned Part 5A of the Nationality, Immigration and Asylum Act 2002, headed “Article 8 of the ECHR: Public Interest Considerations”. That was inserted by section 19 of the Immigration Act 2014 with effect from 28 July 2014. By section 117A, it is to apply where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under article 8, and so would be unlawful under section 6 of the Human Rights Act 1998. “The public interest question” is defined as the question whether such an interference is justified under article 8(2).
Section 117A(2)(a) provides that, in considering the public interest question, the court or tribunal must in particular have regard to the considerations listed in section 117B. The considerations listed in that section include the public interest in “the maintenance of effective immigration controls” (subsection (1)); the public interest in those seeking to enter being able to speak English (subsection (2)), and be financially independent (subsection (3)); the little weight to be accorded to private life or relationships established when a person was in the country unlawfully (subsection (4)), or when immigration status was precarious (subsection (5)); and, directly relevant in this case, as subsection (6):
“In the case of a person who is not liable to deportation, the public interest does not require the person's removal where –
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
The Applicant is an Indian national, born on 15 July 1990, who first arrived in the United Kingdom on 9 January 2010 with leave as a Tier 4 (General) Student until 10 February 2012. On 24 March 2012, he made a further application for leave to remain on the same basis, supported by an accredited Test of English for International Communication (“TOEIC”) certificate. That application was refused on 17 July 2012. The Applicant remained in the UK without leave.
On 13 February 2015, he applied for leave to remain on the basis of family life. His wife is also an Indian national, but, following the death of her parents in a car crash, she moved to the UK at the age of four and has resided here since. By the time of her marriage to the Applicant, she had indefinite leave to remain in the UK. The Applicant and his wife had a first child born on 12 November 2013. A second child was born later, on 29 July 2016. Both children are British citizens, and “qualifying children” for the purposes of section 117B of the 2002 Act. It is uncontroversial that the Applicant has a genuine and subsisting parental relationship with them.
The February 2015 application for leave to remain was refused by the Secretary of State on 12 October 2015, on several grounds including that the Applicant failed to meet the suitability requirement in paragraph S-LTR.1.6 of Appendix FM of the Immigration Rules, because the TOIEC certificate submitted with the March 2012 application was false and fraudulently obtained by use of a proxy such that the Applicant's presence in the UK was considered not to be conducive to the public good due to his conduct. It is that refusal decision which underlies the application now before the court.
The Applicant appealed that decision. The resulting proceedings have been regrettably lengthy and convoluted although not, I hasten to add, as the result of the manner in which the Applicant (or, indeed, the Secretary of State) has conducted them.
The Applicant's appeal was initially dismissed by First-tier Tribunal Judge Parker on 23 November 2016; but, on 25 July 2017, that decision was set aside by Upper Tribunal Judge Craig and the appeal remitted to the First-tier Tribunal for redetermination. On 2 March 2018, First-tier Judge Ross allowed the Applicant's appeal on human rights grounds, concluding that it would not be reasonable to expect either the Applicant's wife or their two British citizen children to leave the UK to enable them to enjoy a family life with the Applicant in India. The Secretary of State then appealed that determination on the basis that Judge Ross had materially erred in applying section 117B(6) of the 2002 Act by effectively equating the best interests of the children with the different question of whether it would be reasonable for them to leave the UK with their parents which involved a balancing exercise of (amongst other things) their best interests against the public interest of removing foreign nationals whose conduct makes their presence in the UK not conducive to the public good.
On 6 July 2018, following an oral hearing at which both parties were represented, Upper Tribunal Judge Jackson effectively agreed with that submission, concluding that the decision of Judge Ross involved an error of law which required it to be set aside, which he did. He then proceeded to remake the decision of the First-tier Tribunal, by dismissing the Applicant's appeal against the Secretary of State's refusal of his application for leave on article 8 grounds.
Following judgments of this court in MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705 and AM (Pakistan) v Secretary of State for the Home Department [2017] EWCA Civ 180 (in which this court considered itself bound by the earlier authority of MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617; [2016] Imm AR 954), Judge Jackson proceeded on the basis that section...
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