DH (Jamaica) v Secretary of State for the Home Department

Permission to appeal may be granted where it is arguable that an immigration decision failed to address whether limited discretionary leave should be granted while a parent pursued contact with children in the United Kingdom. The court accepted that this issue was distinct from the merits of the appellant’s Article 8 claim. The existing assessment under Razgar [2004] UKHL 27 and Huang [2007] UKHL 11 was not otherwise successfully challenged. It was also arguable that contact proceedings could not realistically be pursued from abroad.

The appellant, a Jamaican national, sought to remain in the United Kingdom to pursue contact with two children living here. A Senior Immigration Judge reconsidered his appeal and concluded that he should not be granted leave to remain. The judge considered the Article 8 claim, including the appellant’s immigration history, limited contact with the children and family ties in Jamaica.

On an application for permission to appeal, the appellant accepted the difficulty of challenging that conclusion but argued that the tribunal had failed to consider limited discretionary leave pending an application to secure contact with his children. The central issue was whether that alternative basis of challenge was arguable.

1. Permission granted. The challenge to the tribunal’s conclusion on the substantive Article 8 claim was not realistically arguable. In the light of Razgar [2004] UKHL 27 and Huang [2007] UKHL 11, the tribunal was entitled to conclude that the existing contact between the appellant and the children did not justify granting leave to remain.
2. The separate complaint was arguable. It was arguable that the tribunal had failed adequately to consider whether limited discretionary leave should be granted pending the appellant’s attempt to obtain contact rights through solicitors. It was also arguable that the tribunal had proceeded on the premise that an application for contact could be pursued from abroad, although that course might be wholly unrealistic.
3. The appellant’s reliance on MS (Ivory Coast) v SSHD [2007] EWCA Civ 133 and Ciliz v The Netherlands (Application no. 29192/95) raised an arguable issue. The court did not finally determine whether discretionary leave should be granted.
4. A separate application for discretionary leave had been made to the Secretary of State. If properly considered and determined, it might make the appeal otiose. The formal order was: Application granted.

• Court of Appeal (Civil Division): On an application for permission to appeal, the court granted permission. It held that the challenge to the substantive Article 8 assessment was not realistically arguable, but that the complaint concerning limited discretionary leave pending contact proceedings was arguable.
• Asylum & Immigration Tribunal: Senior Immigration Judge Latter, on reconsideration, concluded that the appellant should not be granted leave to remain. The AIT number was AA/00002/2009.