Sabir & Ors, R (on the application of) v The Secretary of State for the Home Department

An appellate court may set aside permission to appeal only for a compelling reason. Where permission was obtained on inaccurate or incomplete materials, the court must ask whether the deficiencies affected the grounds for granting permission and whether permission would otherwise have been refused.

The jurisdiction is exceptional. Minor inaccuracies or infelicities are insufficient. A fundamentally misleading presentation which supplies the entire basis for granting permission may satisfy the test. An application to set permission aside should be made promptly. Delay may cause the court to refuse to entertain it or to impose costs sanctions, although the court may hear a late application where proceeding to a full appeal would serve no purpose.

The appellants had unsuccessfully sought judicial review of decisions refusing them leave to remain as Tier 1 (Entrepreneur) Migrants. The Administrative Court dismissed their claims in [2015] EWHC 264 (Admin). Those claims had challenged the lawfulness of requirements in the Immigration Rules and had advanced a subsidiary evidential-flexibility argument. They had not alleged that the evidence submitted with the immigration applications satisfied the Rules.

Vos LJ subsequently granted permission to appeal because an apparent factual mix-up required consideration. The Secretary of State applied under rule 52.9 of the Civil Procedure Rules to set that permission aside, contending that the application for permission had misleadingly presented compliance with the Immigration Rules as an issue below. She alternatively sought an extension of time for a respondent’s notice.

The central question was whether the misleading presentation supplied a compelling reason to set aside permission to appeal.

1. Permission to appeal set aside and permission refused. McCombe LJ, with whom Davis LJ and Lord Dyson MR agreed, held that this was an exceptional case satisfying rule 52.9 of the Civil Procedure Rules.

2. The criteria stated in Hertsmere BC v Harty & ors [2001] EWCA Civ 1238 applied. Where a respondent alleges that permission was granted upon misleading material, the respondent must show that the material was inaccurate or incomplete, that the deficiency affected the grounds upon which permission was granted, and that permission would not have been granted but for that deficiency. The requirement for a compelling reason imposes a heavy burden.

3. The appellants’ permission materials were fundamentally misleading. They suggested that the issue below was, or included, whether the appellants had supplied evidence satisfying the Immigration Rules. In fact, their pleaded and argued case had challenged the lawfulness of the relevant Rules, with an evidential-flexibility argument which was not pursued orally. Whether the evidence complied with the Rules was therefore immaterial to the Deputy Judge’s decision. The permission materials also sought new relief without alerting the court that it had not been sought below.

4. The supposed factual mix-up was fundamental to Vos LJ’s grant of permission. Had the true procedural and argumentative position been properly presented, permission would not have been granted. The three Hertsmere criteria were therefore satisfied.

5. The power to set permission aside remains exceptional. Mere inaccuracies or infelicities in a permission application will not suffice. Here, however, the misleading presentation formed the entire basis of the permission decision.

6. The Secretary of State should have applied substantially earlier. A late application may be refused without consideration or attract costs sanctions. The court nevertheless heard this application because permission had been granted on a fundamentally false basis and a full appeal would serve no purpose. It was unnecessary formally to determine the alternative application for an extension of time for the respondent’s notice.

1. Court of Appeal (Civil Division): The court unanimously set aside Vos LJ’s order granting permission to appeal and substituted an order refusing permission: [2015] EWCA Civ 1173.
2. Court of Appeal permission stage: Vos LJ had granted permission on the papers because the effect of an apparent factual mix-up arguably required consideration.
3. Administrative Court: A Deputy Judge dismissed the applications for judicial review of the refusal of leave to remain: [2015] EWHC 264 (Admin).