HS & Ors, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber) & Anor

For judicial review of an unappealable Upper Tribunal refusal of permission to appeal, the second-tier appeals criteria operate as a permission filter. Once permission has been granted, those criteria are spent. The substantive hearing is governed by the ordinary public law grounds of judicial review.

The court should recognise the Upper Tribunal’s specialist expertise when reviewing its decision on permission to appeal. Earlier findings and orders in family proceedings are generally background material to the immigration tribunal’s fact-finding exercise; no special procedural code beyond existing law is required. An unadvanced Article 8 argument need not be raised by a tribunal where the Secretary of State’s decision has addressed the point and there is no further material indicating a realistic prospect of success.

The claimant and her two children sought judicial review of the Upper Tribunal’s refusal of permission to appeal against the First-tier Tribunal’s dismissal of her asylum, humanitarian protection and human rights appeal.

The claim concerned the weight to be given to findings and interim orders made in related family proceedings, the alleged risk that the children would be separated from their mother on return to Kenya, and the alleged failure to consider the children’s welfare and removal from the United Kingdom as an Article 8 issue.

The central procedural issue was whether the second-tier appeals criteria governed the substantive judicial review or operated only at the permission stage.

1. The claim was dismissed. The second-tier appeals criteria identified in R(Cart) v The Upper Tribunal; R(MR(Pakistan) v The Upper Tribunal [2011] UKSC 28 constitute a permission or filter test for judicial review of an excluded, unappealable Upper Tribunal decision. They are not the substantive test. Once permission has been granted, the court considers the alleged error of law by applying the ordinary grounds of judicial review.
2. The court therefore reviewed the Upper Tribunal’s refusal of permission on ordinary public law principles, while taking account of the Upper Tribunal’s specialist expertise. Under section 11 of the Tribunals, Courts and Enforcement Act 2007, permission to appeal may be granted where there is an error of law.
3. The immigration judge was entitled to assess the evidence that the father did not intend to remove the children from their mother. The findings and interim orders in the family proceedings had been made in a different procedural and legal context. Applying the helpful guidance in Devaseelan v SSHD [2002] UKIAT 00702, they formed background to, rather than dictated, the later immigration fact-finding exercise. No additional special guidance was required.
4. The immigration judge had considered the totality of the evidence and was entitled to conclude that no real risk of separation on return had been established. The family findings, credibility findings and previous orders did not compel a different conclusion. The principle in R v Lucas [1981] QB 720 also meant that disbelief on one issue did not automatically require disbelief on another.
5. The alternative Article 8 argument based on the children’s removal from the United Kingdom had not been advanced before the tribunals. The Secretary of State’s refusal letter had nevertheless addressed the children’s integration, schooling and return with their mother. In the absence of further relevant material or a challenge to that reasoning, the point was neither a Robinson-obvious issue nor one which the tribunals were legally required to raise themselves. The later procedural rule in CPR 54.7A was consistent with the same analysis.

This was a first-instance judicial review in the Administrative Court.

• The First-tier Tribunal dismissed the claimant’s appeal against the Secretary of State’s refusal of further leave.
• The First-tier Tribunal and then the Upper Tribunal refused permission to appeal.
• High Court (Administrative Court): the judicial review claim was dismissed.