TE (Eritrea) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 08 February 2011 |
| Neutral Citation | [2011] EWCA Civ 293 |
| Date | 08 February 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2009/2260 |
[2011] EWCA Civ 293
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Before: Lord Justice Sullivan
Case No: C5/2009/2260
[APPEAL No: AS/00526/2007]
Ms Shazia Khan (instructed by Messrs Miles Hutchinson Lithgow) appeared on behalf of the Appellant.
The Respondent Did Not Appear And Was Not Represented.
Lord Justice Sullivan:
This is a renewed application for permission to appeal against the determination dated 10 June 2010 of Senior Immigration Judge Hanson dismissing the appellant's appeal against the Secretary of State's rejection of her claim that she should be given leave to remain in the United Kingdom in the light of the factors that are set out in paragraph 395C of HC395. I grant permission to appeal. It may help the parties if I briefly explain my reasons for doing so, notwithstanding the refusal of permission on the papers by Sir Richard Buxton.
It is unnecessary to rehearse the complicated procedural history which is set out in the determination. The only issue for the Senior Immigration Judge was the application of paragraph 395C. There is only one ground of appeal: that the Senior Immigration Judge applied the wrong legal test in assessing the merits of the appellant's case under paragraph 395C because he carried out a balancing exercise weighing the factors in favour of permitting the appellant to remain against the weight to be given to the legitimate aim of the maintenance of immigration control (see for example paragraph 52 of the determination).
It is submitted by Ms Khan on behalf of the appellant that whilst such a balancing exercise is entirely appropriate and indeed required when considering an application on Article 8 grounds, it is neither required nor appropriate when considering an application under paragraph 395C. If the appellant meets the requirements of the rule she succeeds, if not she fails. There is no need for a balancing exercise. The terms of paragraph 395C are set out in paragraph 16 of the determination. I appreciate that the Rule requires the Secretary of...
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