BL (Serbia) v Secretary of State for the Home Department

On a renewed application for permission to appeal, an arguable error of law arises where a later tribunal reaches a different Article 8 proportionality conclusion from an earlier unappealed determination without explaining the difference. This is especially so where the later findings identify no new facts adverse to the applicant and the claimed family or private life is at least as strong as before. Permission was granted to examine the legal effect of the earlier determination; the court did not finally decide whether removal was disproportionate.

The applicant had previously succeeded before the Immigration Appeal Tribunal on the basis that removal would disproportionately interfere with her Article 8 family life with her sister-in-law. That decision was not appealed. After a later application for indefinite leave to remain was refused, an Immigration Judge initially allowed the appeal, but on reconsideration concluded that removal was proportionate. The Asylum and Immigration Tribunal dismissed the challenge at second-stage reconsideration. The renewed application concerned the legal impact of the earlier determination on the later decision-making process.

1. Permission granted. It was arguable that the later tribunal’s reasoning was legally defective in failing to explain its different proportionality conclusion from the earlier unappealed decision.
2. The earlier decision had found both an Article 8 family life and disproportionate interference with it. The later tribunal found that the relationship had not weakened and might have strengthened, and identified no new facts adverse to the applicant.
3. The court did not determine the merits of the Article 8 claim or hold that removal was disproportionate. The full court was to consider the impact of the 2002 determination on the 2007 decision-making process.

• Court of Appeal (Civil Division): Permission was initially refused on the papers by Keene LJ on 8 October 2007. On renewal, permission was granted.
• Asylum and Immigration Tribunal: The Tribunal dismissed the challenge at second-stage reconsideration in its determination promulgated on 23 April 2007.
• Immigration Judge: The initial appeal against refusal of indefinite leave to remain was allowed, but reconsideration followed and a material error of law was found.
• Immigration Appeal Tribunal: The applicant’s earlier human-rights appeal was allowed on 26 November 2002, including a finding of disproportionate interference with her Article 8 family life.