Koussa, R (On the Application Of) v Secretary of State for the Home Department

In judicial review, an arguable procedural error removing an immigration appeal does not justify relief where the appeal would have had no real prospect of success and quashing would confer no practical benefit. The court may assess the underlying Article 8 claim at the permission stage. Family life between spouses may ordinarily continue in their country of origin. Private life acquired during a temporary period of study will not make removal disproportionate without evidence of a sufficiently strong connection. A possible right to raise further grounds under a one-stop notice adds nothing unless concrete grounds with some prospect of success are identified.

Mr and Mrs Koussa, Mauritian nationals, challenged decisions rejecting their applications for leave to remain. The first application was rejected for failure to pay the increased fee. The second was rejected because they did not meet the relevant Immigration Rules. Their leave had expired, so they had no right of appeal against the second decision.

The Upper Tribunal refused permission to proceed with judicial review. The renewed application concerned whether the alleged fee error deprived the applicants of an appeal and continuing leave under section 3 C of the Immigration Act 1971, and whether the absence of a one-stop notice under section 120 deprived them of an opportunity to raise further grounds. The central issue was whether those matters gave the claim a real prospect of success or any practical benefit.

The Court of Appeal, per Lord Justice Moore-Bick, refused the renewed application for permission to appeal.

1. The court proceeded on the assumption that the first application had been dispatched before the fee increase. On that basis, it was at least arguable that the Secretary of State had wrongly treated it as defective. That error might have deprived the applicants of an appeal and of the continuation of leave under section 3 C of the Immigration Act 1971.
2. The loss of an appeal was material only if the appeal had some real prospect of success. Judicial review should not result in a decision being quashed where doing so would confer no practical benefit on the applicant or the public.
3. The applicants’ case depended on Article 8. Their family life could be enjoyed together in Mauritius. There was no evidence of other family life in the United Kingdom. Although they had established some private life during approximately eight years in the United Kingdom, their residence had principally enabled the first applicant to study, and the evidence did not show a private life of sufficient quality to make removal disproportionate.
4. A one-stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002 would have been required if there had been a right of appeal. However, the applicants identified no additional grounds for leave to remain which had any prospect of success.
5. There was therefore no arguable error in the Upper Tribunal’s conclusion that the judicial review claim had no real prospect of success. Permission to appeal was refused.

• Court of Appeal (Civil Division): Refused the renewed application for permission to appeal, holding that the judicial review claim had no real prospect of success. [2015] EWCA Civ 618
• Upper Tribunal Immigration and Asylum Chamber: Upper Tribunal Judge Jordan refused permission to proceed with judicial review, concluding that the Secretary of State’s decision was not seriously open to challenge and that any appeal would inevitably have failed.