P, R (On the Application Of) v Upper Tribunal

In a Cart application, permission for judicial review may be granted where the case is rare and appears to have gone seriously wrong, or where an error of law may have had very serious consequences for the applicants.

Each decision-maker in the appellate process has a separate duty to consider the best interests and welfare of an affected child. That duty may arise even where the original decision preceded the commencement of BCIA section 55. A tribunal cannot avoid that duty by treating the child’s best interests as subsumed within a general Article 8 assessment, particularly where its reasons do not demonstrate that the interests were properly considered.

The first claimant, a 14-year-old child resident in Vietnam, sought entry clearance to join his mother, half-brother and stepfather in the United Kingdom. The entry clearance officer refused the application, and the First-tier Tribunal dismissed the appeal and refused permission to appeal.

The Upper Tribunal then refused permission to appeal. The claimant sought judicial review of that refusal. The Administrative Court considered whether the case met the exceptional threshold for a Cart application, focusing on the failure to consider the child’s best interests, the parties’ family life, and evidence of contact and the child’s wish to join his mother.

1. Permission granted. The court treated this as a rare case in which the decision-making process appeared to have gone seriously wrong. It also fell within the further category of a Cart case involving an error of law that potentially had very serious consequences for the applicants.
2. The First-tier Tribunal erred in treating the absence of BCIA section 55 at the time of the entry clearance decision as meaning that the child’s welfare and best interests did not require consideration at the appeal stage. Each decision-maker has a separate duty to take those matters into account, regardless of whether they were considered earlier in the process. An appropriate remedy could include allowing the appeal and directing reconsideration by the lower tribunal, although that is not necessarily the only course.
3. The tribunal’s brief treatment of the claimants’ family life was inadequate. It was insufficient to state that the child’s best interests had effectively been considered within the Article 8 assessment. The reasons needed to show that the interests had in fact been addressed.
4. The tribunal also appeared not to have properly engaged with evidence of contact between mother and child, or with evidence that the child wished to live with his mother. If that evidence was rejected, reasons were required.
5. The claimants still faced substantial hurdles on the substantive judicial review. The court directed expedition, with the hearing not before 15 January 2013, and gave the usual directions for bundles, skeleton arguments and authorities.

• Entry clearance officer: refused the child’s application for entry clearance.
• First-tier Tribunal: dismissed the appeal and refused permission to appeal.
• Upper Tribunal: refused permission to appeal.
• High Court (Administrative Court): granted permission to apply for judicial review of the Upper Tribunal’s refusal.