Secretary of State for the Home Department v RA (Pakistan) & Anor

For a second appeal, an arguable error of law is insufficient. The applicant must also show a compelling reason for the appeal to proceed. A one-off error, even an obvious one, will not satisfy that requirement without a specific public-interest injury or other special feature.

Case management with related test cases does not remove the need for an individual assessment. Permission may properly be refused where the case does not involve the same material error as the test cases.

The respondents, a wife and son seeking entry clearance to join their British sponsor, could not satisfy the requirements of Immigration Rules, including the income and supporting-document requirements. The First-tier Tribunal allowed their appeals outside the Rules under Article 8, relying particularly on the young children’s need for both parents. The Upper Tribunal upheld that decision, finding no material error of law.

The Secretary of State sought permission for a second appeal. The case had been managed with other post-MM cases, but unlike those cases it had not expressly applied the lower minimum-income approach. The central issues were whether the alleged errors and the group litigation context satisfied the second-appeal test.

Permission to appeal refused. Underhill LJ gave the leading judgment and Lewison LJ agreed.

1. The second-appeal test requires more than an arguable error of law. A one-off departure from the proper approach does not satisfy the second limb merely because the error may have been particularly obvious. There must be a compelling reason to hear the appeal, such as a specific injury to the public interest or another special feature. The general interest in maintaining proper immigration controls was insufficient.
2. The First-tier Tribunal had plainly erred by treating the guidance in Gulshan [2013] UKUT 640 (IAC), concerning leave to remain, as equally applicable to leave to enter. However, its self-direction requiring compelling circumstances not sufficiently recognised under the Rules used the formulation endorsed by this court in SS (Congo) [2015] EWCA Civ 387. It was therefore not clear that the tribunal had applied the wrong substantive test.
3. It was arguable that the tribunal had adopted an excessively free-wheeling Article 8 assessment and had failed to give the very substantial weight required to non-compliance with the Rules concerning proof of the sponsor’s income. That issue was not finally determined because permission was refused.
4. The fact that the case formed part of a larger, case-managed group did not itself establish a compelling reason. The cases allowed in SS (Congo) had expressly relied on Blake J’s first-instance decision in MM (Lebanon), effectively applied a £13,400 income limit, and did not require compelling reasons outside the Rules. This case involved no such approach. The distinction was neither unfair nor arbitrary.

• Court of Appeal (Civil Division): Refused permission to appeal under the second-appeal test: [2015] EWCA Civ 1524.
• Upper Tribunal (Immigration & Asylum Chamber): Upheld the First-tier Tribunal’s decision, finding no material error of law; no citation is stated in the judgment.
• First-tier Tribunal: Allowed the respondents’ appeals outside the Immigration Rules by reference to Article 8.