TG (Mauritius) and Others v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Jackson
Judgment Date27 January 2016
Neutral Citation[2016] EWCA Civ 210
Date27 January 2016
Docket NumberC5/2015/1284

[2016] EWCA Civ 210

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(Deputy Upper Tribunal Judge Monson)

Royal Courts of Justice

Strand

London, WC2A 2LL

BEFORE:

Lord Justice Jackson

C5/2015/1284

TG (Mauritius) & Ors
Appellants
and
Secretary of State for the Home Department
Respondent

Mr J Martin (instructed by David Benson Solicitors) appeared on behalf of the Appellants

The Respondent did not attend and was not represented

Lord Justice Jackson
1

This is an oral application for permission to appeal to the Court of Appeal. The four claimants, as I shall refer to them in these proceedings, are citizens of Mauritius. The first claimant and second claimant are husband and wife. The third and fourth claimants are their adult sons.

2

The first claimant came to the UK in 2005. He obtained leave to remain here as a student until November 2013. Other family members came to this country on 23 November 2006. The two sons received education in this country. All members of the family applied for leave to remain in this country. The first claimant's leave to remain expired in November 2013. The Secretary of State refused leave to remain after 2013.

3

The claimants appealed to the First-tier Tribunal. The appeal was heard before First-tier Tribunal Judge Cockrill in July 2014. He heard evidence and he promulgated his decision on 22 July 2014.

4

The claimants' best chance of success was pinned upon the position of the fourth claimant. The fourth claimant relied upon Rule 276ADE(4) of the Immigration Rules, arguing that he had been in this country for 7 years, therefore he had an entitlement to further leave to remain. The parents, in reliance upon that, said that they would need to be here, and the third claimant, an older son, would clearly need to remain in this country with his parents.

5

The difficulty with this argument was that the application for leave to remain was made 8 days before the second, third and fourth claimants had been in this country for 7 years. There is, under the guidance issued by the Secretary of State to his officials, a discretion to overlook anything up to 28 days if the application for leave to remain is made towards the end of the qualifying period, but not an obligation to overlook the few missing days.

6

The First-tier Tribunal Judge came to the conclusion that in all the circumstances the fourth claimant ought to have been granted leave to remain under Rule 276ADE(4) and in consequence of that the other family members should also have leave to remain.

7

In paragraph 38 of his decision, the First-tier Tribunal Judge said this:

"Given the impact of return on the Fourth Appellant I repeat the point that his parents should be permitted to stay with him for this limited period and given the close relationship between the Third and Fourth Appellants, and both of them with their parents, that this family should, for the time being, stay together up until July 2015 at which point different decisions may need to be made because the Fourth Appellant will then be an adult."

Accordingly, the First-tier Tribunal Judge allowed the appeals of all the claimants.

8

The Secretary of State appealed to the Upper Tribunal. There was an initial hearing on 29 September 2014, at which Deputy Upper Tribunal Judge Monson noted that the proposed appeal could not succeed and that the Secretary of State needed to make amendments. In the exercise of his discretion, he adjourned the proceedings. The Secretary of State served her proposed amended notice of appeal. At a hearing on 16 January 2015, Deputy Upper Tribunal Judge Monson allowed the Secretary of State to make those amendments.

9

Subsequently, the deputy Upper Tribunal judge considered the substantive issues. He concluded that the First-tier Tribunal had erred in law in allowing the fourth claimant's claim to remain in this country under article 8 of the ECHR and Rule 276ADE(4). He went on to re-make the decision. He concluded that the fourth claimant had no entitlement to remain in this country and the others claimants could not piggyback on the position of the fourth claimant. Accordingly, the deputy Upper Tribunal judge allowed the Secretary of State's appeal and restored the original decision refusing further discretionary leave to remain in this country to all claimants.

10

The claimants are aggrieved by that decision. Accordingly, they applied for permission to appeal to the Court of Appeal on three grounds. The first...

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