Upper Tribunal (Immigration and asylum chamber), 2021-08-25, HU/19298/2019 & HU/19305/2019
| Jurisdiction | UK Non-devolved |
| Date | 25 August 2021 |
| Published date | 09 September 2021 |
| Hearing Date | 29 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/19298/2019 & HU/19305/2019 |
Appeal Numbers: HU/19298/2019 (V)
HU/19305/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/19298/2019 (V)
HU/19305/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
|
Remotely by Microsoft Teams |
On 25 August 2021 |
|
On 29 July 2021 |
|
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
Navida Ajmal
Khawaja Ajmal Ahsan Butt
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr E Gajjar, instructed by Burney Legal Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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The appellants, who are married, are citizens of Pakistan who were born on 5 November 1953 and 15 March 1946 respectively.
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They entered the United Kingdom on 27 September 2014 with entry clearance as visitors valid until 28 February 2015.
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On 28 February 2015, both appellants applied for indefinite leave to remain outside the Rules on compassionate grounds. On 5 May 2015, the Secretary of State refused each appellant the leave sought. On 15 May 2015, the appellants lodged an appeal with the First-tier Tribunal. On 3 May 2016, the First-tier Tribunal (Judge O’Brien) dismissed each of the appellants’ appeals. Each of the appellants was refused permission to appeal by the First-tier Tribunal on 4 October 2016 and by the Upper Tribunal on 22 November 2016. They became appeal rights exhausted on 22 November 2016.
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On 20 December 2016, they were served with a RED.0001 document. On 13 April 2018, the appellants applied for leave to remain under the family and private life rules in Appendix FM of the Immigration Rules (HC 395 as amended).
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On 11 November 2019, the Secretary of State refused the applications of both appellants.
The Appeal to the First-tier Tribunal
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The appellants appealed to the First-tier Tribunal. Their appeals were heard by Judge L Murray on 11 March 2020. They relied upon para 276ADE of the Rules and the Adult Dependent Relative Rules (the “ADR Rules”) in Section EC-DR of Appendix FM. Further, they relied upon Art 8 outside the Rules.
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In her determination sent on 25 March 2020, Judge Murray dismissed the appellants’ appeals on all grounds. First, she did not accept that there were “very significant obstacles” to their integration on return to Pakistan under para 276ADE(1)(vi). Secondly, she did not accept that the appellants met the requirements of the ADR Rules in Appendix FM. In particular, the appellants were within the UK, rather than applying from outside the UK, and the judge did not accept that the long-term personal care they required to perform everyday tasks as a result of their health and age was neither unavailable nor unaffordable in Pakistan. Finally, the judge found that the appellants’ removal would be proportionate in that the public interest in effective immigration control outweighed their personal circumstances.
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The appellants sought permission to appeal on a number of grounds in reaching her adverse finding under the ADR Rules, including failing properly to assess the evidence as to whether the required care was available to the appellants in Pakistan.
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On 24 April 2020, the First-tier Tribunal (Judge Nightingale) refused the appellants permission to appeal. On 15 July 2020 the Upper Tribunal (UTJ Kopieczek) also refused permission to appeal.
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The appellants sought judicial review of Judge Kopieczek’s decision under CPR 54.7A on a Cart basis.
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On 13 November 2020, Lieven J granted the appellants permission to bring judicial review proceedings challenging the Upper Tribunal’s refusal of permission.
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On 7 April 2020, Master Gidden made an order quashing the UT’s refusal of permission to appeal.
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In response to that order, on 21 April 2021 the Upper Tribunal (Judge Ockelton, VP) granted the appellants permission to appeal.
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The appeal was listed for hearing on 29 July 2021 at the Cardiff Civil Justice Centre. I was based in court and Mr Gajjar, who represented the appellants, and Mr Avery, who represented the Secretary of State, joined the hearing remotely by Microsoft Teams.
The Grounds
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In the Cart judicial review, the appellants relied upon grounds going beyond those upon which permission had been sought both in the First-tier Tribunal and Upper Tribunal. In granting permission Lieven J under “Observations” identified the arguable errors of law that led her to grant permission to judicial review of the UT’s refusal of permission to appeal as follows:
“1. In my view there are a number of aspects of the FTT’s decision where the Cart test is made out.
a. The FTTJ has not considered the family life of the grandchildren and s.55 of the 2009 Act;
b. it is not apparent whether s.117B of the 2002 Act applies to family life between elderly parents, their children and grandchildren;
c. the FTTJ’s conclusions that family life could continue because the appellants could continue to travel to the UK when the medical evidence strongly suggests that it would not be the case;
d. the FTTJ’s conclusions on care in Pakistan are also very difficult to follow in the light of the evidence that care facilities suitable for those with conditions such as the appellants are not available in Pakistan;
e. there is a dispute as to whether the evidence was that the former employer would continue to pay medical fees. This may be less material given that the real issue is the availability of personal care, rather than the affordability of medical care.
2. These grounds are arguable. The compelling reason to grant permission is the devastating effect that this decision is likely to have on the appellants and their family and they need to be sure that the decision has been lawfully made.”
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At the hearing, Mr Gajjar recognised that he was “treading a fine line” in relying on the JR grounds of appeal upon which Lieven J had granted permission in the Cart judicial review challenge as they went beyond the grounds in the application refused by the UT.
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Mr Avery submitted that the appellants could only rely on the UT grounds unless those grounds were now amended to reflect the grounds upon which permission had been granted in the Cart challenge and, he pointed out, no application to amend had been made.
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Neither representative developed this issue any further and both made substantive submissions on the grounds upon which Lieven J had granted permission in the Cart judicial review.
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This situation creates a procedural conundrum. The Upper Tribunal has made clear that the basis upon which a Cart challenge should be made is that the UT failed properly to consider the grounds that were presented to it as part of the permission application. Further, and different, grounds should not be relied upon as that would be to allow an individual to have ‘three bites of the cherry’ in challenging the FtT’s decision.
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In MA (Cart JR: effect on UT processes) Pakistan [2019] UKUT 353 (IAC) (Lane J, President and Judge Ockelton, Vice President) as set out at para (4) of the headnote observed that:
“(4) The requirement in CPR 54.7A, that there must be shown to be something arguably legally wrong with the way in which the Upper Tribunal reached its decision in response to the grounds of application that were before it, is important. If it is not observed, there is a serious risk of a ‘Cart’ judicial review being seen as a third opportunity for an appellant to perfect grounds of challenge to the First-tier Tribunal’s decision, when Parliament has ordained that there should be no more than two.”
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Consequently, at [40] the UT said this about the need to amend the grounds to reflect those in the Cart challenge:
“If, as a result of ‘Cart’ judicial review proceedings, the grounds for contending that the First-tier Tribunal Judge erred in law have changed, compared with those that were before the Upper Tribunal when it made its (now quashed) decision, the appellant will need to apply to the Upper Tribunal for permission to amend his or her grounds of permission, in order to be able to rely upon the grounds advanced in the ‘Cart’ judicial review. The fact that such grounds have found favour in the High Court does not mean those grounds automatically become the grounds of challenge to the First-tier Tribunal’s decision.”
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It is no doubt reflecting that approach that led Mr Avery to point out that the grounds upon which Lieven J had granted permission in the Cart proceedings should only become part of the appeal before me if the grounds of appeal were amended.
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The Upper Tribunal returned to this issue in Osefiso and Another (PTA decision: effect; ‘Cart’ JR) [2021] UKUT 112 (IAC) (Lane J, President and Judge Ockelton, Vice President). In that case, the UT was concerned with a situation where an attempt to amend the UT grounds had been made based upon the grounds that had found success in the Cart challenge. At [22], the UT referred to its earlier decision in MA and identified the approach that should be followed in Cart judicial reviews as follows:
“22. As the Upper Tribunal explained in MA (Cart JR: effect on UT processes) Pakistan [2019] UKUT...
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