Chui v Secretary of state for the home Department

On a second appeal in an immigration case, the stringent permission test requires an important point of principle or practice, or another compelling reason. Counsel cannot preserve a point by remaining silent when a tribunal identifies the issues; disagreement must be stated and argued. An appeal brought by one family member cannot ordinarily determine the separate private- or family-life claims of relatives who have not challenged their own removal decisions. Under Article 8, family life with an adult child is normally slight, even where the child remains at home while studying. The application for permission was refused.

The appellant, a Chinese national, challenged a decision to remove him from the United Kingdom. His wife and adult daughter had separate removal decisions but did not appeal. The appellant’s case had first been considered by Immigration Judge Wiseman, whose decision was set aside on procedural grounds, and was then reconsidered by Immigration Judge Hall in the Upper Tribunal. Judge Hall treated the appeal as confined to the appellant’s private life and did not consider the family-life position of his wife or daughter. The renewed application concerned whether that approach involved an arguable error and whether the family circumstances raised an important point of principle or practice or another compelling reason for a second appeal.

Application refused. The Court of Appeal held that the renewed application did not satisfy the stringent test applicable to a second appeal. There was no important point of principle or practice and no other compelling reason to grant permission.

1. Immigration Judge Hall had sought at the beginning of the hearing to clarify the issues, including the difficulty of relying on the family life of relatives who had not appealed against their own removal decisions. Counsel did not demur or make clear that he disputed the proposed scope of the appeal. Silence did not preserve the point for a later permission application. Counsel was required to state the disagreement and argue the issue.
2. Only the appellant’s appeal was before the tribunal. The wife and daughter had not appealed their removal decisions. The tribunal was therefore entitled to confine the appeal to the appellant’s position and could not determine their separate private- or family-life claims indirectly. As matters stood, the family could be united only in Hong Kong.
3. The court considered the family-unit approach described in Beoku Betts v SSHD [2008] UKHL 39. Even assuming the family-life issue could be reopened, the daughter was an adult and was primarily establishing her own life. Her family-life connection with her parents was therefore very slight, notwithstanding that she lived at home while studying medicine. Any separate private-life case she might have had was hers to advance in her own appeal. The argument did not provide a compelling reason for a second appeal.

Order: application refused.

1. Court of Appeal (Civil Division) — On 17 November 2011, refused the renewed application for permission to appeal, applying the second-appeal threshold. [2011] EWCA Civ 1550
2. Upper Tribunal (Immigration and Asylum Chamber) — Immigration Judge Hall’s determination, promulgated on 4 April 2011, treated the appeal as confined to the appellant’s private-life rights and did not consider the wife’s or daughter’s family-life claims.
3. Earlier Upper Tribunal proceedings — Immigration Judge Wiseman’s decision of 21 December 2010 was set aside in its entirety on procedural grounds, requiring the matter to be considered afresh by Immigration Judge Hall.