CG (China) & Anor v Secretary of State for the Home Department

At the permission stage, a potentially material failure to address a child’s independent position under ECHR Article 8 may amount to an error of law. This is particularly so where the evidence identifies a primary bond and primary care relationship with a person facing removal. Permission was also justified for an arguable issue concerning whether administrative removal falls within section 86(4) of the Nationality, Immigration and Asylum Act 2002, affecting tribunal jurisdiction and removal powers. The substantive issues were reserved for a full court.

The appellants entered the United Kingdom as visitors to support their husband and father, who had a terminal condition. After a judicial review was compromised by consent order, the Secretary of State made a fresh decision refusing to vary their leave and issued removal directions. The First-tier Tribunal dismissed their appeals. The Upper Tribunal allowed an appeal concerning the Secretary of State’s power to make the removal decisions, but set aside and remade the First-tier Tribunal’s decision, finding no error in its Article 8 assessment.

On renewal of an application for permission to appeal, the central issues were whether the tribunals had failed to address the granddaughter’s independent Article 8 position and whether administrative removal was governed by section 86(4) of the Nationality, Immigration and Asylum Act 2002.

Permission to appeal granted. The substantive Article 8 and statutory construction issues were not determined. The matter was directed to an expedited hearing before a full court of three judges, including one with immigration and asylum experience.

1. The central arguable error concerned the granddaughter’s independent Article 8 position. The evidence before the First-tier Tribunal was that the primary bond and primary care were with the first appellant. The tribunals had not squarely addressed what would happen if she were removed while the child remained. Although a factual issue would not ordinarily justify a second appeal, this potential omission could amount to an error of law and left the decisions in a critical and fragile position.
2. An additional arguable issue concerned section 86(4) of the Nationality, Immigration and Asylum Act 2002. The full court was to determine whether administrative removal falls within that provision and whether the answer affected the jurisdiction of the First-tier and Upper Tribunals. If the appellants had no leave to vary, the Secretary of State may have lacked power to refuse variation and consequently to make section 47 removal directions. Those matters were left unresolved.
3. The challenge based on the judicial review consent order was not an independent basis for permission. The Secretary of State was entitled to make a fresh decision on the facts, and the correction-of-injustice argument was not pursued before the Court of Appeal.

An expedited transcript was directed at public expense.

1. Court of Appeal (Civil Division): Permission had been refused on paper by Richards LJ. On renewal, Sir Ernest Ryder granted permission and directed an expedited hearing before a full court.
2. Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge McCarthy held that the Secretary of State had no power to make the removal decisions, allowed the appeal on that ground, set aside the First-tier Tribunal’s decision and remade it. He found no error in the Article 8 assessment.
3. First-tier Tribunal: Judge Holt dismissed the appellants’ appeals against the refusal to vary their leave and the removal directions.
4. Judicial review: The earlier challenge was compromised by a consent order requiring a fresh decision with an in-country right of appeal.