Gaoua v Secretary of State for the Home Department

Permission to appeal from an Immigration Appeal Tribunal may be granted where it is properly arguable that the Tribunal adopted an approach inconsistent with an earlier Court of Appeal decision, or that its conclusion represented no more than a different view of the facts. An apparent inconsistency with another Tribunal decision may provide additional support, particularly where a specific paragraph appears relevant. Permission does not determine the substantive merits. The appeal was therefore directed to a full hearing before a three-judge court.

The applicant sought permission to appeal from an Immigration Appeal Tribunal decision. He argued that the Tribunal had adopted an approach inconsistent with the Court of Appeal’s decision in Subesh and ors v Secretary of State [2003] EWCA Civ 56, and had merely reached a different view of the facts. A supplementary ground relied on an apparent inconsistency with a Tribunal decision in the case of Y, dated 8 June 2004, particularly paragraph 22. The applicant also sought an extension of time. The central questions were whether the proposed grounds were properly arguable and whether the additional ground and extension should be granted.

1. Lord Justice Keene granted permission to appeal. The applicant’s case was properly arguable on the basis that the Immigration Appeal Tribunal’s approach may not have accorded with the approach required by the Court of Appeal’s decision in Subesh and ors v Secretary of State [2003] EWCA Civ 56. It was also arguable that the Tribunal had merely expressed a different view of the facts. The court did not determine those issues finally at the permission stage.

2. The court considered that there was some force in the further argument that the Tribunal’s decision was inconsistent with the decision in Y, a Tribunal decision dated 8 June 2004. Paragraph 22 of that decision appeared particularly relevant. This inconsistency supplied additional support for granting permission, but did not resolve the substantive appeal.

3. Permission was formally granted on the additional ground set out in paragraphs 5 and 6 of the supplementary skeleton dated 21 July 2004. The application for an extension of time was also granted. The order recorded that the application was allowed, with the appeal to be heard before a three-judge court. Public funding was ordered subject to the usual means-testing criteria and detailed assessment.

• Court of Appeal (Civil Division): On appeal from the Immigration Appeal Tribunal, permission to appeal was granted on amended grounds and time was extended. The substantive appeal was directed to a three-judge court. [2004] EWCA Civ 1049