SB (Pakistan) v Secretary of State for the Home Department

Where, during an appeal, the respondent has already granted the leave that success would produce, the appeal is academic and should be dismissed without deciding the underlying claim. An Article 8 claim does not carry entitlement to indefinite leave where the applicable policy provides only limited leave. A representative who has not completed pupillage should not assume entitlement to conduct a full appeal: permission should be sought, and the Free Representation Unit should be approached for qualified pro bono representation.

The appellant, a Pakistani citizen, claimed leave to remain based on domestic violence and Article 8, relying in part on her relationship with her young British-citizen daughter. The domestic-violence claim had been rejected and was not pursued. Senior Immigration Judge Waumsley dismissed the Article 8 claim. While the appeal was pending, the Secretary of State granted 30 months’ leave to remain under the parent route, which was the leave the appellant would obtain if the Article 8 appeal succeeded. The central issue before the Court of Appeal was whether any live issue remained.

The Court of Appeal unanimously dismissed the appeal as academic.

1. Sir Stanley Burnton held that the appellant had already received the leave to remain which she would obtain if her Article 8 claim succeeded. A successful appeal would therefore provide no practical advancement of her position. The court dismissed the appeal on that basis, without deciding whether the Article 8 claim was good or bad.
2. The court noted that the applicable policy provided for 30 months’ limited leave under the parent route, rather than indefinite leave to remain. The appellant remained able to apply for further leave before the existing leave expired, having regard to the developing circumstances of her daughter. The county court maintenance order also permitted her to return to that court in relation to ongoing spousal payments.
3. Lord Justice Sullivan agreed that the appeal had become academic following the Secretary of State’s grant of 30 months’ leave.
4. Lady Justice Arden added an obiter observation concerning representation. An unqualified person assisting an appellant should not assume entitlement to conduct a full appeal merely because permission to appeal had previously been obtained. Such a person should seek the court’s permission and should approach the Free Representation Unit to identify a qualified barrister willing to act pro bono.

Order: Appeal dismissed.

1. Court of Appeal (Civil Division) In [2013] EWCA Civ 506, the court dismissed the appeal as academic after the Secretary of State granted 30 months’ leave to remain.
2. Upper Tribunal (Immigration & Asylum Chamber) Senior Immigration Judge Waumsley dismissed the appellant’s Article 8 claim. The decision was promulgated on 15 April 2011.