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

Eligibility under rule 276ADE(iv) is assessed at the date of the application. A child who reaches seven years’ residence only by the hearing date cannot rely on that rule, even if statutory provisions require factual matters at the hearing date to be considered. Party consent to determination on the evidence cannot ordinarily be made conditional on the result. On a second appeal, an important point of principle or practice must be shown. A tribunal’s best-interests and family-life assessment will not justify permission where the decision, read as a whole, shows a logical balancing exercise and no unlawful presumption.

This was a renewed application for permission to appeal after Underhill LJ refused permission on paper. It arose from the Upper Tribunal’s decision upholding the First-tier Tribunal’s determination concerning a Mauritian family seeking to remain in the United Kingdom.

The principal issue concerned the older child, who had completed seven years’ residence by the date of the First-tier Tribunal hearing but not by the date of the application. The appellants also challenged the effect of their consent to determination on the evidence and the Tribunal’s best-interests and family-life balancing exercise.

The court dismissed the renewed application for permission to appeal.

1. Applicable rules. The court summarised the decision in Singh v Secretary of State as establishing that an application for leave based on family or private life made before 9 July 2012 and determined after 5 September 2012 was governed by the Rules as amended by HC 194 and HC 565.
2. Rule 276ADE(iv) and section 85. Rule 276ADE(iv) required seven years’ residence at the date of the application, together with the applicable reasonableness condition. The older child had not met the seven-year requirement when the application was made. Although the court accepted that section 85 of the Nationality, Immigration and Asylum Act 2002 ordinarily required relevant factual matters at the hearing date to be considered, the rule-based eligibility requirement was a legal condition, not a factual matter within that principle. Treating residence accrued after the application as sufficient would undermine the intended operation of the rule.
3. Earlier permission order. The order in Kansara provided no assistance. It contained no formal adjudication or reasoned ruling, the papers were incomplete, and it implemented an offer to consent to remittal in materially different circumstances.
4. Consent to determination. The appellants had agreed that the First-tier Tribunal could decide the appeal on the evidence, making appropriate allowance for the child’s needs and interests. There was no record that this consent was conditional. It could not be revisited merely because the decision was adverse.
5. Second appeal and balancing exercise. A second appeal required an important point of principle or practice. The First-tier Tribunal considered the child’s position and balanced it against the fact that she would remain with her Mauritian family, return to her country of citizenship, and retain communication with friends and family in the United Kingdom. Its reference to compelling circumstances did not show that it had applied an impermissible presumption. The decision disclosed no arguable error of law or point warranting a second appeal.

• Court of Appeal (Civil Division) — Lady Justice Arden dismissed the renewed application for permission to appeal. [2015] EWCA Civ 578
• Upper Tribunal (Immigration and Asylum Chamber) — upheld the First-tier Tribunal’s decision as disclosing no error of law.
• First-tier Tribunal — determined the family’s appeal after considering the older child’s best interests and the evidence before it.