DM (Bangladesh) v Secretary of State for the Home Department

In appeals concerning children’s welfare, a tribunal’s inquisitorial or case-management powers are engaged where it considers the assembled evidence insufficient to make a properly informed best-interests assessment under section 55 of the Borders, Citizenship and Immigration Act 2009. A deficiency in evidence which the applicants themselves could remedy does not trigger those powers. Inquiry beyond matters raised by the parties is rare and exceptional. Permission for a second appeal was refused because the tribunal had assessed the evidence and found that it did not establish the necessary family links, raising no important point of principle or practice and revealing no other compelling reason.

This was a renewed application for permission to appeal from the Upper Tribunal’s decision of 16 December 2013. The Upper Tribunal had dismissed the appeal from the First-tier Tribunal’s decision of 22 May 2013, which had upheld entry-clearance refusals concerning a Bangladeshi father and his three children seeking settlement with the British wife and mother in the United Kingdom.

The First-tier Tribunal had found that the Immigration Rules were not satisfied. Permission to appeal to the Upper Tribunal had been granted on the issue of whether the children’s welfare had been properly considered. The renewed application relied on a new argument concerning the Upper Tribunal’s alleged duty to adopt an inquisitorial procedure and make further inquiries under section 55 of the Borders, Citizenship and Immigration Act 2009.

1. Permission threshold. On a second appeal, the applicant must show an important point of principle or practice, or some other compelling reason for permission to be granted. The Court of Appeal applied that threshold to the new ground advanced in the renewed application.
2. Inquisitorial and case-management powers. SS (Nigeria) [2013] EWCA Civ 550 recognised that inquiry beyond the matters raised by the parties would be very rare and exceptional. The passage from MK (section 55 Tribunal options) Sierra Leone [2015] UKUT 223 (IAC), at paragraph 39, identified the relevant trigger: the tribunal must consider that the assembled evidence is insufficient to make a properly informed assessment of the child’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009. If that trigger exists, the tribunal may consider further evidence or use case-management powers, or determine the appeal in a way requiring a fresh decision.
3. Application. The Upper Tribunal had not considered the evidence insufficient for the required assessment. It had identified an evidential deficiency which was within the Applicants’ power to remedy. The trigger for further inquisitorial or case-management action therefore did not arise. The proposed appeal raised no important point of principle or practice and no other compelling reason was established. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division) — On 21 May 2015, Lord Justice McCombe refused the renewed application for permission to appeal. [2015] EWCA Civ 727
• Upper Tribunal (Immigration and Asylum Chamber) — Dismissed the appeal on 16 December 2013.
• First-tier Tribunal — Dismissed the appeal on 22 May 2013. Permission to appeal to the Upper Tribunal was granted on the issue of the children’s welfare.
• Entry clearance officer, Dhaka — Refused the applications for entry clearance to settle in the United Kingdom.