PJ (India) v Secretary of State for the Home Department

A renewed application for permission to bring a second appeal requires satisfaction of the strict second-appeal threshold, including compelling reasons under the second limb relied upon. Long residence, peaceful conduct and a private life may attract sympathy, but they do not by themselves meet that threshold where residence has remained precarious after an effective notice of removal. Delay in dealing with an immigration application can be relevant to the Article 8 assessment. It may reduce the weight given to immigration control where evidence shows a dysfunctional system producing an unpredictable, inconsistent or unfair outcome. Mere delay, without that evidence, is insufficient. The application was therefore refused.

The applicant, an Indian national who had lived in the United Kingdom since 1995, challenged the refusal of applications for leave to remain and the decision to remove him. The First-tier Tribunal, Judge Doran, dismissed his appeal on both applicable-rule and Article 8 grounds. The Upper Tribunal, Deputy Judge Lewis, upheld that decision, finding no error of law, in a determination promulgated on 16 December 2013. On a renewed application, the Court of Appeal considered whether the requirements for a second appeal were met, particularly whether the applicant’s lengthy residence and the delay in dealing with an earlier application provided compelling reasons for the Court to hear the appeal.

1. Application refused. This was a renewed application for permission to appeal from the Upper Tribunal. The Court of Appeal was concerned with whether the strict requirements for a second appeal were satisfied, rather than determining the underlying removal appeal on its merits.
2. The applicant relied on his age, almost 20 years’ peaceful residence in the United Kingdom, absence of criminal involvement and asserted private life here. Those matters attracted sympathy but did not, without more, establish compelling reasons for a second appeal.
3. Delay in immigration decision-making can be relevant to the Article 8 assessment. Referring to EB (Kosovo) [2009] 1 AC 1159, the court considered the possibility that delay may reduce the weight otherwise given to firm and fair immigration control where it results from a dysfunctional system producing unpredictable, inconsistent or unfair outcomes. The evidence in this case did not show such an outcome merely because the earlier application had remained unresolved for a lengthy period.
4. The applicant had been served with notice of removal in 1997, and that notice remained effective. His continued residence was therefore on a precarious basis notwithstanding its length and peaceful character.
5. The strict second-appeal requirements were not met. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 10 June 2015, Lord Justice Aikens refused the renewed application for permission to appeal: [2015] EWCA Civ 765.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Judge Lewis upheld the First-tier Tribunal’s dismissal of the appeal and found no error of law in a determination promulgated on 16 December 2013.
• First-tier Tribunal: Judge Doran dismissed the appeal against the Secretary of State’s decision to remove the applicant, in a decision promulgated on 13 August 2013.