BS (Congo) & Ors v Secretary of State for the Home Department

Permission for a second appeal requires either an important point of principle or practice that has not yet been established, or another truly compelling reason. A complaint that an established principle was misapplied is insufficient. The compelling-reason limb is exceptional; good prospects of success, public interest in deportation, risks posed by offenders, multiple cases, or a point not raised below do not by themselves meet it. Statutory provisions introduced after the decisions under challenge cannot be applied retrospectively, or through the possible remedy on a successful appeal, to create the necessary point. The question whether paragraphs 399 and 399A of the Immigration Rules 2012 can support exceptional circumstances was treated as an application of established principles. All four renewed applications were refused.

Four factually unrelated cases concerned challenges under Article 8 of the European Convention on Human Rights to deportation orders made after the respondents’ criminal convictions. The Secretary of State, unsuccessful before the Upper Tribunal (Immigration and Asylum Chamber), renewed applications for permission to bring second appeals. Permission had been refused on paper in three cases by Underhill LJ and in the fourth by Moore-Bick LJ.

The Secretary of State relied on the effect of section 19 of the Immigration Act 2014, the meaning of exceptional circumstances under paragraphs 399 and 399A of the Immigration Rules 2012, and an alleged compelling reason arising from the merits, public interest and number of cases. The central issue was whether the second-appeal criteria were satisfied.

McCombe LJ gave the judgment, with which Richards LJ agreed. The Court of Appeal refused all four renewed applications for permission to appeal.

1. Important point of principle or practice. Under CPR 52.13(2)(a), the relevant point must be important and not previously established. A complaint that an established principle was incorrectly applied in an individual case does not satisfy that limb: Uphill v BRB [2005] EWCA Civ 60. The principles governing exceptional circumstances in Article 8 deportation cases had already been stated and restated, including in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. A further restatement was unnecessary.
2. Section 19. Section 19 of the Immigration Act 2014 introduced sections 117A to 117D into the Nationality, Immigration and Asylum Act 2012. Those provisions were not in force when the lower tribunals decided the cases. They could not be applied retrospectively, and the possible consequences of a successful second appeal, including remittal or re-making, could not create a present appeal point. The court also noted the difficulty of applying criteria never considered below.
3. Compelling reason. A compelling reason is a truly exceptional justification. This reflects the policy that second appeals are exceptional and that lower courts’ authority should ordinarily be respected: Tanfern Limited v Cameron-MacDonald [2000] 1 WLR 1311 and Iftakar Ahmed v Stanley A Coleman and Hill [2002] EWCA Civ 935. A good prospect of success, the public interest in deporting foreign criminals, public risk, permission granted in other cases, or the fact that four cases were challenged together did not suffice. In one case, the Secretary of State could not rely on a point not raised before either tribunal.

• Court of Appeal (Civil Division) — Renewed applications for permission to bring second appeals were refused. [2015] EWCA Civ 639.
• Upper Tribunal (Immigration and Asylum Chamber) — The four respondents had succeeded in factually unrelated challenges to deportation orders. The Secretary of State was the unsuccessful party and sought second-appeal permission.
• Permission stage — Permission was refused on paper in three cases by Underhill LJ and in the fourth by Moore-Bick LJ before renewal to the Court of Appeal.