RJ (Gambia) v Secretary of State for the Home Department

On a renewed application for permission to appeal, late citation of authorities and late development of the argument may justify adjourning the application so that the issues can be properly considered and the respondent can respond.

Best interests of a child, even where the child and parent are British citizens, do not automatically determine an immigration application. Where leave is sought outside the Immigration Rules, the decision-maker must address whether there is a compelling reason or exceptional case, rather than treating the matter as an ordinary Article 8 proportionality exercise. The court made no final ruling on permission or the substantive merits.

The claimant sought permission to appeal in an immigration matter concerning leave outside the Immigration Rules. The First-tier Tribunal’s decision had been considered by Deputy Upper Tribunal Judge Pickup. Lord Justice Davis considered that the latter decision disclosed no error of law, but was concerned that the First-tier Tribunal may have approached the Article 8 issue as an ordinary proportionality exercise without addressing the need for a compelling reason or exceptional case.

Authorities and arguments had been raised or developed only at the hearing. The central procedural issue was whether the renewed application should be determined immediately or adjourned to allow fuller consideration and a response from the Secretary of State.

1. Disposition. The renewed application for permission to appeal was adjourned for a further hearing. Lord Justice Davis did not finally determine whether permission should be granted or whether the First-tier Tribunal had made a material error of law.
2. The judge considered that Deputy Upper Tribunal Judge Pickup’s final decision disclosed no error. The law had been correctly approached by reference to the amended Immigration Rules, and the factual assessment was open to the tribunal. The best interests of the child and the British citizenship of the child and mother did not automatically determine the application.
3. The First-tier Tribunal’s decision appeared to have treated a case falling outside the Immigration Rules as an ordinary Article 8 proportionality exercise. The judge considered that proper attention had to be given to whether there was a compelling reason or exceptional case justifying leave outside the Rules. These observations were made in the context of deciding whether the alleged error of law required further consideration.
4. The application was adjourned because relevant authorities had been cited late and the argument had been materially focused only at the hearing. The Secretary of State was directed to file and serve grounds of resistance and a written response to the applicant’s arguments, including consideration of the authorities relied on and their possible impact on previous decisions.
5. The further hearing was directed to take place by 8 February 2016, before Davis LJ if available or another single Lord Justice, with a time estimate of 45 minutes.

• First-tier Tribunal: The claimant’s immigration application was determined, apparently by reference to Article 8 and matters outside the Immigration Rules. The citation of the decision is not stated in the judgment.
• Upper Tribunal: Deputy Upper Tribunal Judge Pickup issued a final decision which Lord Justice Davis considered disclosed no error of law. The citation is not stated in the judgment.
• Court of Appeal (Civil Division): On the renewed application for permission to appeal, Davis LJ adjourned the application and directed a written response from the Secretary of State before a further hearing.