MS (Pakistan) v Secretary of State for the Home Department

An appellate court will not entertain an arguable point that was not raised before the AIT and does not concern a Robinson obvious issue. Such a point cannot establish an error of law by the Tribunal. The appropriate route may instead be a fresh application to the Secretary of State under the Immigration Rules.

An Article 8 claim must be assessed under the applicable proportionality approach, including the formulation stated in Huang. However, delay alone, without particular disadvantage caused by the delay, will not necessarily make removal disproportionate. The unexplained delay and the Tribunal’s Article 8 reasoning disclosed no arguable error of law.

The appellant sought permission to appeal from an Asylum and Immigration Tribunal determination in which his Article 8 claim had been rejected. He relied on an arguable construction of section 3C of the Immigration Act 1971, but that point had not been expressly raised before or considered by the AIT. It had been considered only when a senior immigration judge refused permission to appeal.

The Court had adjourned the earlier permission application so that the Secretary of State could address the point and explain substantial delays in processing the appellant’s application. The central issues were whether the unraised section 3C point could found an appeal, and whether the AIT had erred in rejecting the Article 8 claim, particularly in light of Huang and the unexplained delay.

1. Permission refused. The arguable section 3C point could not found an appeal because it was not before the AIT and was not a Robinson obvious matter. The AIT was not obliged to consider grounds outside those expressly advanced, save for obvious matters arising in the context of the Refugee Convention or the ECHR. The point therefore did not identify an error of law attributable to the AIT.
2. The appellant’s possible remedy on the section 3C issue was a fresh application to the Secretary of State under the Immigration Rules, including paragraph 276 and the ten-year continuous lawful residence requirement. The court considered substantive consideration of that application appropriate.
3. The AIT had not erred in law in rejecting the Article 8 claim. The appellant’s established ties and otherwise sympathetic circumstances did not alter that conclusion. The changed formulation of proportionality in Huang did not make this a case capable of succeeding under Article 8, and the AIT’s reasons were not inadequate.
4. The unexplained delay of almost nine years had been considered by the AIT. Under H B and Others v Secretary of State for the Home Department [2006] EWCA Civ 1713, this was a case of delay alone, without particular disadvantage caused by the delay. The Article 8 ground therefore had no real prospect of success.
5. Although the court did not determine the section 3C point, Lord Justice Maurice Kay indicated that its arguability made reliance on section 96 of the Nationality, Immigration and Asylum Act 2002 inappropriate and that the Secretary of State should not be expected to certify the matter under that provision.

• Court of Appeal (Civil Division): Permission to appeal from the Asylum and Immigration Tribunal was refused. The AIT’s determination in AIT No. AA/07648/2005 was not displaced.