Mudibo v Secretary of State for the Home Department

On a renewed application for permission to appeal, the Court of Appeal held that it was arguable that the decision-maker and Upper Tribunal had failed adequately to consider or explain whether materially inferior medical treatment abroad constituted an insurmountable obstacle to continuing family life outside the UK. It was also arguable that the Upper Tribunal had applied too high a standard when assessing arguability. The court did not decide the substantive immigration or Article 8 issues. Permission to appeal was granted, but permission to bring judicial review proceedings was refused.

This was a renewed application for permission to appeal from an Upper Tribunal decision dated 13 January 2015. Sales LJ had refused permission on the papers to challenge the refusal of permission to bring judicial review proceedings. The proposed challenge concerned the effect of a British citizen spouse’s serious HIV illness, the availability and quality of medical treatment in Tanzania, and the alleged failure to consider those matters under Appendix FM and Article 8. The applicant also alleged factual error and inadequate reasoning. The central issue was whether the proposed appeal was arguable or disclosed another compelling reason for a hearing.

1. Permission to appeal. Permission was granted. Although the Court of Appeal’s decision in R (Agyarko) v SSHD [2015] EWCA Civ 440 and the reasons given by Sales LJ appeared compelling, it was arguable that the decision-maker and Upper Tribunal had not adequately considered, or given reasons for, treating the difference between medical care in Tanzania and the UK as no insurmountable obstacle to family life.
2. Arguability. It was also arguable that the Upper Tribunal had applied too high a standard to the question whether an appeal was arguable. The seriousness of the husband’s illness, his British citizenship, the uncertainty about access to appropriate healthcare in Tanzania and the risk of materially inferior treatment were capable of making the issue a life-and-death question rather than a simple choice of relocation.
3. Scope of the decision. The court granted permission only to appeal. It did not determine whether the circumstances in fact amounted to an insurmountable obstacle, whether Article 8 was breached, or whether the evidence established the availability of treatment in Tanzania. Those matters remained for the appeal.
4. Judicial review permission. The court refused to grant permission to bring judicial review proceedings itself. The applicant would have to persuade the court on the appeal that such an order was appropriate. The court further indicated that, even if there were no real prospect of success, other compelling reasons could justify hearing the appeal.

• Court of Appeal (Civil Division): On 15 December 2015, permission to appeal was granted, but permission to bring judicial review proceedings was refused: [2015] EWCA Civ 1588.
• Upper Tribunal: On 13 January 2015, permission to bring judicial review proceedings was refused. Sales LJ refused permission to appeal on the papers.