Khatoon v The Entry Clearance Officer Islamabad

Once permission for judicial review has been granted under the Cart jurisdiction, the court determines the substantive claim by applying the ordinary principles of judicial review. The second-tier appeal criteria are not the continuing substantive test.

An entry clearance application is decided by reference to the circumstances existing when the decision is made. The Immigration Rules do not require an applicant who reaches 18 after applying to be treated as still under 18; they merely prevent refusal solely because the applicant reached 18, where the other requirements are met.

A tribunal is not generally required to investigate an unargued Article 8 case. The applicant must show that the omitted point was obvious and had a strong prospect of success.

The claimant, a Pakistani citizen, sought entry clearance to join her settled father and family in the United Kingdom. She applied shortly before her eighteenth birthday, but the entry clearance officer refused the application after she had become an adult. Her appeal under paragraph 297 of the Immigration Rules was dismissed. The First-tier Tribunal considered accommodation and maintenance, while Article 8 was raised only at the permission-to-appeal stage.

The Upper Tribunal refused permission to appeal, including on the proposed Article 8 ground. The claimant sought judicial review of that refusal. The issues were whether paragraph 27 required her to be treated as a child, whether the tribunals erred by failing to consider the welfare provisions applicable to children, and whether they were required to consider Article 8 despite its not having been raised earlier.

1. Permission test. The court followed R (HS & Others) v the Upper Tribunal [2012] EWHC 3126 (Admin). Once permission for judicial review had been granted under the second-tier principles in R (Cart) v the Upper Tribunal [2012] 1 AC 621, the substantive claim was to be determined by the established grounds of judicial review.
2. Age at decision. Paragraph 27 of the Immigration Rules had its natural meaning. It did not require the decision-maker to treat an applicant as under 18 at the decision date. It prevented refusal solely because the applicant reached 18 between application and decision, provided the other requirements of the relevant category were satisfied. The claimant was therefore an adult when the entry clearance decision was made.
3. Evidence and timing. Under section 85(5) of the Nationality, Immigration and Asylum Act 2002, an entry clearance appeal concerned the circumstances existing at the date of refusal. Later evidence could be admitted where it related to those circumstances. The court applied the ratio of AS (Somalia) v Secretary of State for the Home Department [2009] 1 WLR 1385.
4. Because the claimant was not a child at the relevant date, the tribunals were not required to apply the child-welfare considerations under Article 3 of the UN Convention on the Rights of the Child or the associated guidance. The guidance in Mundeba v Entry Clearance Officer – Nairobi [2013] UKUT 88 (IAC) concerned applications by minors.
5. Unargued Article 8 issue. Under R (Robinson) v Secretary of State for the Home Department [1998] QB 929, an appellate tribunal need not search for merely arguable new points. An omitted point must be obvious and have a strong prospect of success. The claimant’s evidence showed residence with an aunt and some financial support from her father, but did not establish exceptional dependency or vulnerability. Applying the approach illustrated by Güll v Switzerland [1996] 22 EHRR 93 and AAO v Entry Clearance Officer [2011] EWCA Civ 840, the Article 8 claim was difficult and could not meet that threshold.
6. The First-tier Tribunal had not erred in failing to consider Article 8 on the evidence before it. The Upper Tribunal had considered Article 8 and was entitled to conclude that the proposed claim was more likely to fail than succeed. The judicial review claim was dismissed.

• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the claimant’s appeal against refusal of entry clearance.
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal, finding no arguable error of law and no real prospect of success on the unargued Article 8 issue.
• High Court (Administrative Court): dismissed the judicial review claim and declined to quash the Upper Tribunal’s decision.