NJ (Sri Lanka) & Ors v Secretary of State for the Home Department

On a renewed application for permission to appeal in an Article 8 case, a decision-maker must consider whether later developments create a genuinely new issue, including changes in family and private life since an earlier determination. A previous, cursory consideration of Article 8 does not necessarily make later representations legally sufficient. The decision-maker must also apply the governing approach after Huang; the absence of a “truly exceptional” threshold does not make success inevitable. Where the representations are arguably insufficiently considered, permission for judicial review may properly be granted even if the underlying Article 8 claim appears difficult.

The appellants, a Sri Lankan family, sought permission to appeal against Langstaff J’s refusal of permission to challenge decisions culminating in their removal. Their asylum claim had been refused, and an adjudicator dismissed the husband’s appeal in 2003, including the human-rights grounds. Later representations relied on the family’s private and family life developed in the United Kingdom, the children’s education, community ties and the Family Amnesty Policy.

The Secretary of State treated the representations as raising no new issues. The central question was whether that approach was legally adequate, particularly in light of the passage of time and the House of Lords’ decision in Huang.

1. Application granted. The court held that it was arguable that the Secretary of State had not given the appellants’ case the consideration required by law.
2. The later representations raised matters concerning the possible disruption of family life on removal after approximately six years in the United Kingdom. They therefore arguably raised a new issue, rather than merely repeating matters considered by the adjudicator in 2003. Under Rule 353, the relevant questions were whether the material was new and, if so, whether it gave rise to a realistic prospect of success before the adjudicator.
3. The adjudicator’s treatment of Article 8 in 2003 was described as very exiguous. It was arguable that reliance on that earlier treatment, without engaging with the subsequent development of the family’s circumstances, was legally insufficient.
4. The change in the law effected by the House of Lords’ decision in Huang was material. The “truly exceptional” test had been dispensed with. That development reinforced the arguability of the challenge, although it did not mean that the Article 8 claim would ultimately succeed.
5. The court expressed the provisional view that establishing an Article 8 case on the facts would be difficult, but that was a matter for the substantive hearing. Judicial review leave was granted, and the substantive judicial review was retained in the Court of Appeal because there had already been an effective inter-partes hearing before Langstaff J.

• Court of Appeal (Civil Division): On 25 April 2007, the renewed application for permission to appeal was granted and judicial review leave was given. The substantive judicial review was retained for hearing in that court.
• Administrative Court: Langstaff J refused permission to seek judicial review of the Secretary of State’s decisions.
• Immigration Appeal Tribunal: Leave to appeal was refused, as understood by the Court of Appeal.
• Adjudicator: The husband’s appeal against refusal of asylum and human-rights grounds was dismissed on 19 May 2003.