MI (Nepal) v Secretary of State for the Home Department

A renewed application for permission to appeal may be adjourned where a substantial new Article 8 point has some merit but has not been properly explored below, requires a response from the respondent and depends on factual findings. This is particularly appropriate on a second appeal. The application may be listed before a full court, with the appeal to follow if permission is granted. The court may also limit recoverable appellate costs before permission is granted, including by ordering that each side bear its own costs.

The applicant, a Nepalese national and daughter of a former Gurkha, challenged refusal of indefinite leave to remain outside the Immigration Rules. The First-tier Tribunal dismissed her appeal, and the Upper Tribunal dismissed her further appeal. On a renewed application for permission to appeal, she advanced an Article 8 argument based on her mother's illness and the historic injustice affecting former Gurkhas, including a counterfactual case that her father might have settled in the United Kingdom. The point had not been properly canvassed below and there were no relevant factual findings. The central issue was whether the application should be determined immediately or adjourned for a full court and a response from the respondent.

The renewed application for permission to appeal was adjourned for determination by a full court.

1. The proposed argument had some merit and required a response from the respondent. It had not been properly canvassed before the tribunals, there were no findings about what the applicant's late father would, could or might have done, and the matter concerned a second appeal.
2. The proposed argument relied on the historic injustice discussed in R(Gurung & Ors) v Secretary of State for the Home Department [2013] 1 WLR 2546 and on factors identified in Patel, Modha & Odedra v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17. The intended grounds were to address both Article 8.1 family life and private life.
3. The applicant was directed to revise the grounds of appeal within 21 days and serve them on the respondent. The application and any appeal were to be heard by three Lords Justices, at least one of whom was to have immigration experience. The time estimate was half a day.
4. The court held that Civil Procedure Rules 1998 Part 52.9A did not prevent an order limiting recoverable appeal costs before permission had been granted. Recoverable costs were limited so that each side would bear its own costs whatever the outcome. The order was made ex parte, leaving the respondent able to seek its discharge.

• Court of Appeal (Civil Division): adjourned the renewed application for permission to appeal for determination by a full court, with any appeal to follow if permission were granted.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the applicant's appeal in a determination promulgated on 28 July 2014.
• First-tier Tribunal: Judge Boyd dismissed the appeal against the Secretary of State's refusal of indefinite leave to remain outside the Immigration Rules.