E v Secretary of State for the Home Department

Permission to appeal should be granted where an alleged error of law is sufficiently arguable to warrant consideration by the appellate court. That threshold may be met where an immigration tribunal treated an Article 8 family-life issue as unavailable because it was not raised in the original application, although the relevant facts were known to the Secretary of State. It may also be met where the tribunal’s alternative merits reasoning is unclear, particularly if the appellant had no opportunity to provide evidence or submissions on material family facts. A minor additional ground may be included once permission is granted on the principal issue, even if it would not independently justify an appeal.

Mr E’s asylum claim had been rejected by an adjudicator, Mr Sanderson, and the Asylum and Immigration Tribunal upheld that decision. He sought permission to appeal to the Court of Appeal. The principal issue concerned whether the AIT had erred in refusing to consider an Article 8 point based on his marriage and his wife’s 16-year-old son, B, who had lived in the United Kingdom throughout his life. The AIT had also considered the point under paragraph 12 of its decision. A minor issue concerned an apparent reference to a separate marriage application. The central question was whether the proposed errors were sufficiently arguable to justify permission.

Application granted. Lord Justice Neuberger considered the proposed grounds sufficiently arguable to justify permission. The court did not determine whether the Article 8 claim would ultimately succeed.

1. The AIT had held that the adjudicator’s failure to consider B’s circumstances was not an error of law because the point had not been raised in Mr E’s original application to the Secretary of State. Buxton LJ had indicated that this reasoning might be wrong, although he considered the error irrelevant because the requirements of DP3/96 were not satisfied. Neuberger LJ agreed that, if the AIT’s decision rested on that reasoning, the issue was sufficiently open to argument.
2. The AIT’s paragraph 12 was ambiguous. It might have meant that the adjudicator would inevitably have dismissed the appeal even if B’s circumstances had been considered. Alternatively, the AIT might have rejected the point independently. The absence of evidence about what had been put to the adjudicator, and the failure to allow further evidence or submissions about B, made it arguable that the AIT had placed the matter too high. It was open to Mr E to argue that the adjudicator’s conclusion could not safely be treated as inevitable.
3. The notes to paragraph 5 of DP3/96 appeared to indicate that, if raised, the Secretary of State should consider the wife’s strong and close family ties in the United Kingdom, including older children forming part of the family unit, and whether the settled spouse had lived in the United Kingdom for at least ten years. It was unclear whether those matters independently constituted strong indications in favour of granting asylum. Comparison with factor (c), which appeared free-standing, made the issue sufficiently arguable.
4. The AIT’s reference to a marriage application might have been no more than a throwaway line and would probably not independently justify permission. It was nevertheless included because permission was granted on the principal issue. The proposed appeal was expected to take no more than half a day and to be heard by three judges.

• Court of Appeal (Civil Division): Permission to appeal was granted on the principal Article 8 issue and the minor issue. [2006] EWCA Civ 835
• Asylum and Immigration Tribunal: The AIT upheld the adjudicator’s rejection of Mr E’s appeal against refusal of asylum.
• Adjudicator: Mr Sanderson rejected Mr E’s appeal against the Secretary of State’s refusal to grant asylum.