ZI (Bangladesh) & Ors v Secretary of State for the Home Department

Administrative delay in notifying an immigration applicant of an adverse decision may be relevant to the article 8 proportionality assessment. Its significance is fact-sensitive and must be assessed in the round. Delay is not decisive and must be weighed with the importance of effective immigration control and all other relevant circumstances. On a second appeal from the Upper Tribunal, permission requires an important point of principle or practice or another compelling reason. A challenge to the weight given to a factor in a fact-sensitive proportionality assessment will rarely satisfy that demanding threshold. Children’s best interests must be treated as a primary consideration, but the appellate question is whether the tribunal below applied that principle lawfully.

The appellants, a Bangladeshi family, sought permission for a second appeal against the Upper Tribunal’s dismissal of their challenge to the First-tier Tribunal’s decision. The First-tier Tribunal had dismissed their appeals against refusal of leave to remain and removal decisions under the Immigration Rules and on human-rights grounds.

The proposed appeal relied principally on delay in notifying the first appellant of the refusal of an earlier regularisation application, and on alleged failures to assess the children’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009 and article 8. The central questions were whether those matters disclosed an arguable error of law and whether the statutory threshold for a second appeal was met.

1. Permission refused. The application was for a second appeal. Under section 13(6) of the Tribunals, Courts and Enforcement Act 2007 and the Appeals from the Upper Tribunal to the Court of Appeal Order 2008, permission required an important point of principle or practice or another compelling reason.
2. The delay in notifying the first appellant of the refusal of his 2000 application was potentially relevant to the article 8 proportionality assessment. However, EB (Kosovo) [2008] UKHL 41 established that delay was not decisive and had to be considered in the round. The First-tier Tribunal had taken the delay into account and had expressly treated it as a slightly favourable factor.
3. The second-appeal threshold was demanding. As explained in PR (Sri Lanka) and Others [2011] EWCA Civ 988, the Court of Appeal had to be satisfied that the proposed appeal had very high prospects of success and that the decision below was perverse or plainly wrong. The appellants did not meet that standard.
4. The First-tier Tribunal had addressed the children’s best interests and given adequate reasons for concluding that those interests did not require reversal of the removal decision. The relevant principles were well known. The issue was whether the tribunals below had applied them lawfully. There was no proper basis for saying that the decision was perverse or plainly wrong.
5. The grounds disclosed no important point of principle or practice and no compelling reason for a second appeal.

• Court of Appeal (Civil Division): permission to bring a second appeal refused. [2014] EWCA Civ 98
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellants’ challenges, holding that the First-tier Tribunal determination contained no error of law.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeals under the Immigration Rules and on human-rights grounds.