JA (Ghana) v The Secretary of State for the Home Department

In an entry-clearance appeal, the tribunal must decide Article 8 by reference to the circumstances existing when the Entry Clearance Officer made the decision. Later changes cannot be introduced through that appeal. A significant later change should be advanced by a new application.

Where the Upper Tribunal sets aside a First-tier Tribunal decision for legal error, its normal course is to re-make the decision. It need not expressly justify that normal course unless remittal is required by unfairness or the necessary fact-finding. Article 8 does not invariably require oral evidence. It is required where credibility, reliability or essential context makes it necessary for a fair determination.

The appellant, a Ghanaian national who had been deported, sought entry clearance to rejoin his British partner and their British child. His application was refused on 23 April 2012. The First-tier Tribunal dismissed his appeal on 15 January 2013. The Upper Tribunal set aside that decision for error because it had not treated an earlier Upper Tribunal determination by Judge Holmes as the starting point for the Article 8 facts, but it then re-made the decision and dismissed the appeal on 22 August 2013.

The appellant sought a second appeal out of time. He contended that the Upper Tribunal should have remitted the case for an oral hearing and further evidence about the effect of continuing separation upon the child. The central issue was whether the Upper Tribunal’s re-making procedure was unfair or involved an error of law.

1. Appeal dismissed. The court refused permission for the second appeal and refused an extension of time. The Senior President’s judgment was agreed by Lady Justice Arden and Lord Justice Briggs.

2. The statutory appeal concerned circumstances existing when the Entry Clearance Officer decided the application. Sections 85(4) and (5), read with section 85A(2), of the Nationality Immigration and Asylum Act 2002 prevented reliance on later changes. If there had been a significant later change, the appropriate course was a new application. The proposed evidence either concerned later circumstances or added nothing to the material already considered.

3. The Upper Tribunal had correctly used Judge Holmes’s findings as a starting point, as required by Devaseelan [2002] UKAIT 702, rather than as a final answer to the different entry-clearance question. It found family life, accepted that the partner and child could not be expected to live in Ghana, and undertook the distinct proportionality assessment. Its factual conclusions were neither plainly wrong nor procedurally inadequate.

4. The Upper Tribunal’s normal practice was to re-make a decision after correcting a rectifiable error of law. In the absence of an application for remittal or identified additional fact-finding, it did not need expressly to rehearse the Practice Statement before following that normal course. Other appellate jurisdictions’ remittal practices could not be imported into immigration and asylum procedure.

5. An Article 8 appeal does not automatically require a further oral hearing, however intense the scrutiny. Oral evidence may be necessary where credibility, reliability or essential context is material. Compassion and the distress inherent in family separation do not alone create that necessity. On the available evidence, no remittal or further hearing was required.

6. The Article 6 and United Nations Convention points had not been argued from first principles. In light of the doubt identified in Maaouia v France [2001] EHRR 42, the court declined to extend Article 6 in this immigration context.

7. Applying Denton v TH White Ltd [2014] EWCA Civ 906, the delay in filing the notice of appeal was serious and significant. Funding difficulties did not adequately explain non-compliance. The appellant could have filed in time, sought fee remission and applied for a stay. The weakness of the proposed appeal and the interests of finality meant that relief from sanctions was refused.

• Court of Appeal (Civil Division): Refused permission for a second appeal, refused an extension of time, and dismissed the appeal: [2015] EWCA Civ 1031.

• Upper Tribunal (Immigration and Asylum Chamber): On 22 August 2013, set aside the First-tier Tribunal decision for legal error, re-made the decision, and dismissed the appeal against refusal of entry clearance.

• First-tier Tribunal: Dismissed the appeal against refusal of entry clearance on 15 January 2013.