Tetteh, R (on the application of) v Secretary of State for the Home Department

A failure by the Secretary of State to consider an Article 8 claim outside the Immigration Rules, including a properly raised Chikwamba point, makes the decision formally defective. At the permission stage, the claim must nevertheless have a realistic prospect of success. Where the point has never been properly considered and remains doubtful, the doubt should favour granting permission. Permission does not indicate that the claim will ultimately succeed; the Upper Tribunal must determine the Article 8 issues for itself by reference to the relevant authorities.

The applicant, a Ghanaian national who had overstayed in the United Kingdom, applied for leave to remain outside the Immigration Rules based on her relationship with a British national. The Secretary of State refused the application under Appendix FM and did not separately consider the Article 8 claim or the applicant’s reliance on Chikwamba.

The Administrative Court and the Upper Tribunal refused permission for judicial review. The applicant sought permission to appeal on grounds concerning paragraph A277C, consideration outside the Rules, the Chikwamba principle and alleged insurmountable obstacles to her partner accompanying her to Ghana. The central issue was whether those grounds had a realistic prospect of success.

1. Ground 1. The argument that paragraph A277C required the Secretary of State to make a separate decision on whether it was appropriate to proceed under that paragraph was not arguably open to the applicant. The point had been rejected in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74. Permission on this ground was refused.
2. Ground 2. The failure to consider whether leave should be granted outside the Rules was a legitimate ground of challenge. It did not, however, entitle the applicant to relief unless she could show an arguable Article 8 case. The Upper Tribunal judge had considered the evidence but found no exceptional circumstances of the necessary kind, particularly given the precarious basis on which the relationship had been formed, the applicant’s upbringing in Ghana and the absence of children.
3. Ground 3. The applicant had expressly raised the Chikwamba point, namely that removal would serve no good purpose if an out-of-country application would clearly succeed. The decision letter’s failure to address that point made the decision formally defective. Permission should be granted unless it was clear that the argument had no realistic prospect of success. The applicant’s case was stronger in some respects than the claims considered in Agyarko, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 440, but weaker than Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 819 on its facts. The court was not prepared to say that the point was hopeless.
4. Because neither the Secretary of State nor the Upper Tribunal had properly addressed the Chikwamba issue, doubtful points of that kind should favour the applicant at the permission stage. Permission was therefore granted on ground 3 and, because of its linkage with ground 2, on ground 2 as well.
5. Permission was also granted on the proposed insurmountable-obstacles point, with 14 days allowed for amended grounds. The substantive judicial review was retained in the Upper Tribunal. The grant of permission was not a steer as to the ultimate merits.

• Court of Appeal (Civil Division): Granted permission on grounds 2 and 3 and the insurmountable-obstacles point, refused permission on ground 1, and retained the substantive judicial review in the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Hanson refused renewed permission at an oral hearing on 24 July 2014.
• Administrative Court: Permission for judicial review was refused on the papers on 4 February 2014 by Mr Ben Emmerson QC sitting as a Deputy High Court Judge.