MM (Mauritius) v Secretary of State for the Home Department

On a second appeal, permission requires an important point of principle or practice, or some other compelling reason. A challenge to a fact-sensitive exercise of immigration discretion does not meet that threshold merely because an official error is alleged. Guidance requiring consultation with a senior caseworker applies only where the caseworker contemplates exercising discretion. Where relevant considerations have been taken into account, appellate courts should not interfere too readily with administrative judgment and discretion.

The applicant, a Mauritian citizen, entered the United Kingdom as a student in 2000. After successive grants of leave, he applied under the Highly Skilled Migrant Programme on 2 June 2007. He later left for Mauritius and returned on a student visa in October 2008, creating a gap of more than six months in his continuous residence.

His application for further leave based on private life under Article 8 of the European Convention on Human Rights was refused, and his appeal was dismissed. Upper Tribunal Judge Pinkerton found that the 2007 application had been made in time, although it had failed on the HSMP criteria. The renewed application concerned whether an alleged entry-clearance error and the absence of consultation with a senior caseworker raised a sufficient ground for a second appeal.

The renewed application for permission to appeal was refused.

1. The proposed appeal had to satisfy one of the second-appeal criteria in Part 52.13(2)(a) or (b) of the Civil Procedure Rules 1998: an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal.
2. The first proposed ground alleged that the Entry Clearance Officer's initial refusal caused the applicant's absence from the United Kingdom to exceed six months. That issue concerned the facts and the exercise of discretion under the Immigration Rules. It did not raise an important point of law or practice.
3. The second proposed ground concerned modernised Guidance stating that use of discretion must be discussed with a senior caseworker. The Upper Tribunal judge had correctly construed that requirement. Consultation was required only where the caseworker contemplated exercising discretion. If discretion was not contemplated, the requirement did not arise.
4. The question whether a gap exceeding six months should be excused was fact-sensitive. All relevant considerations had been taken into account. The Court should not interfere too readily with decision-making involving judgment and discretion on behalf of the Secretary of State. Neither proposed ground supplied some other compelling reason for a second appeal.

• Court of Appeal (Civil Division) On 23 October 2015, Lord Justice Aikens refused the renewed application for permission to appeal. [2015] EWCA Civ 1591.
• Previous Court of Appeal stage Rafferty LJ had refused permission to appeal on 25 February 2015.
• Upper Tribunal (Immigration and Asylum Chamber) Upper Tribunal Judge Pinkerton gave the decision under challenge on 15 August 2014 and found that the 2 June 2007 application had been made in time.
• First-tier Tribunal The underlying appeal was dismissed. The First-tier Tribunal had found that the 2 June 2007 application was out of time, a conclusion Judge Pinkerton considered incorrect.