GN & Anor (Congo Brazzaville) v Secretary of State for the Home Department

A second appeal in immigration proceedings requires an important point of principle or practice, or another compelling reason. A challenge to the adequacy of reasoning, the weight given to evidence, or the evaluation of background material does not ordinarily satisfy that threshold where it remains fact-specific. Under the Nationality, Immigration and Asylum Act 2002, a person without curtailed existing leave is not liable to leave and therefore has no statutory right of appeal under section 82(2)(e). The court has no jurisdiction to entertain such a purported appeal.

SN and his family entered the United Kingdom as visitors and later applied for asylum and extensions of leave. Their applications were refused by the Secretary of State in November 2009. An Immigration Judge dismissed the appeals on 8 March 2010, and the Upper Tribunal, in a decision dated 20 January 2011, upheld that decision.

SN sought permission for a second appeal, alleging inadequate reasoning, insufficient consideration of an official passport and a United Nations report, and failure to engage with background material. GN’s case depended on SN’s claim, but her existing leave had not been curtailed. The central issues were whether SN satisfied the second-appeal test and whether there was jurisdiction to deal with GN’s purported appeal.

1. GN’s appeal. Under section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002, SN had a right of appeal because he was liable to leave the United Kingdom. GN’s existing leave had not been curtailed, so she was not then liable to leave. She therefore had no statutory right of appeal, and there was no jurisdiction to deal with her purported appeal, despite the Upper Tribunal having treated it as properly constituted.
2. SN’s renewed application. The proposed grounds concerned the assessment and weight of evidence, the adequacy of the lower tribunals’ reasoning, the political character of SN’s commercial activities, and their treatment of background documentation. Those matters raised no important point of principle or practice. Nor was any other compelling reason shown. Laws LJ agreed with Elias LJ’s refusal of permission on the papers.
3. The applicable second-appeal test was discussed in PR & Ors [2011] EWCA Civ 988. Nothing in that decision supported treating this case as suitable for a second appeal. The test was not met, and the application for permission was refused. Had permission been granted in SN’s case, the Secretary of State would have been expected to take administrative measures so that GN’s case was dealt with consistently with its outcome.

• Court of Appeal (Civil Division): Laws LJ refused the renewed application for permission to appeal. He also held that there was no jurisdiction to deal with GN’s purported appeal.
• Upper Tribunal (Immigration and Asylum Chamber): DIJ Dearden upheld the Immigration Judge’s decision on 20 January 2011.
• Immigration Judge: IJ Howard dismissed the appeals on 8 March 2010.