HJ (Pakistan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Davies LJ |
| Judgment Date | 29 June 2017 |
| Neutral Citation | [2017] EWCA Civ 1005 |
| Date | 29 June 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/1503 |
[2017] EWCA 1005 (Civ)
IN THE COURT OF APPEAL – CIVIL DIVISION
Courtroom No. 74
The Royal Courts of Justice
Strand
London
WC2A 2LL
THE HONOURABLE Lord Justice Davies
Case No: C5/2016/1503
Mr A Grigg appeared on behalf of the Appellant
NO APPEARANCE by or on behalf of the Respondent
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This is a renewed application for permission to appeal, leave having been refused on the papers by Underhill LJ.
It is perhaps a point of comment that this case has now been considered in one form or another by no fewer than seven judges. The First-Tier Tribunal judge at a substantive hearing ruled against the appellant on her appeal on 28 April 2015. Permission to appeal to the Upper Tribunal was then refused by a different First-Tier Tribunal judge, but in due course granted by an Upper Tribunal judge. The matter then came before an Upper Tribunal judge at a substantive hearing, a material error of law hearing, and a decision adverse to the applicant was made on 11 January 2016. A different Upper Tribunal judge then refused permission to appeal to this court, as did subsequently Underhill LJ. Now, therefore, I am the seventh judge to consider this matter.
At all events, since both the First-Tier Tribunal and the Upper Tribunal in the two substantive decisions ruled against the applicant, the second appeals test must apply.
The applicant herself is a 68-year-old widow from Pakistan. She has a son, a qualified Accident and Emergency doctor resident in the UK and a British citizen, and she has a daughter (also, I gather, a qualified doctor) resident in Canada.
When the applicant first came to the United Kingdom to stay with her son, it appears that she came as a visitor but, since then, she and her son have decided that they want her to remain with her son on a long-term basis; hence the application. The application was made formally outside the rules, as she was within the United Kingdom, although clearly it is relevant to consider what the position might be had she applied from outside the United Kingdom as an adult dependent relative.
The background of facts are set out fully in the judgment of the First-Tier Tribunal judge, and again briefly summarised in the decision of the Upper Tribunal judge, and I will not repeat them.
Four grounds of appeal have been advanced in writing seeking to challenge the decision of the Upper Tribunal judge that there was no material error of law in the decision of the First-Tier Tribunal judge. For that purpose, I have consequently particularly focused on the decision of the First-tier Tribunal judge, which is a very full and thorough decision.
The first complaint raised in the written grounds was that the First-tier Tribunal judge had wrongly directed herself as to the need for compelling ‘features’ when, on the Article 8 proportionality exercise, what was required was a holistic and cumulative assessment of all the relevant circumstances. It is, however, plain, reading the decision of the First-tier Tribunal judge as a whole, that no such error was made; clearly she had appraised the matter on a holistic basis. The Upper Tribunal judge was clearly right so to determine. I need not say more on that point because Mr Grigg, appearing on behalf of the applicant today, as he has below, has realistically conceded that that particular ground has no mileage.
That leaves grounds two, three and four, which of course must be considered not only individually but taken together. The second ground is that the First-tier Tribunal judge had failed to consider evidence of what was described as ‘domestic violence’. It is quite true, as the Upper Tribunal judge acknowledged, that the First-tier Tribunal judge had made no reference to such evidence. However, it may be queried, as Underhill LJ queried, whether, in truth, this could properly be described as domestic violence at all. Indeed, it would seem to be a serious exaggeration so to describe it.
What was said in oral evidence was that, apparently, the applicant's sister had struck her on one occasion whilst in Pakistan. This was never mentioned in the applicant's own evidence, either written or oral, nor was it mentioned in the written evidence of her doctor son. It apparently emerged for the first time in the oral evidence of the doctor son, on a basis which would appear to be hearsay, as the son was resident in the United Kingdom...
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