Ali & Others, R (On the Application Of) v Secretary of State for the Home Department

In immigration cases, the adequacy of the Secretary of State’s reasoning is assessed against the application actually made. A decision-maker need not determine a separate freestanding Article 8 claim that was not advanced. Where all applicants are adults, can return together, and their circumstances disclose no plausible basis for success outside the Immigration Rules, consideration of Article 8 may be adequate even though the Rules are not met. The Court of Appeal refused permission to appeal against refusal of permission for judicial review.

This was a renewed application for permission to appeal against the Upper Tribunal’s refusal of permission to apply for judicial review. The applicants were a family who had entered the United Kingdom in 2006 and whose earlier Article 8 challenge had been dismissed. Their February 2013 applications sought limited leave to remain and relied on the Immigration Rules and Article 8, but no removal decision was made. Judicial review permission was refused on the papers and after an oral hearing on 3 March 2014. The central issues were whether Article 8 required consideration outside the Rules, and whether separate points concerning Sohail’s education and section 55 had been overlooked.

The renewed application for permission to appeal was refused.

1. The applicants’ fresh-claim argument under paragraph 353 was not pursued. Mr Ahmed accepted that [2014] EWCA Civ 957 provided no assistance and that paragraph 353B did not assist the claim. The court also noted that the relief sought referred inaccurately to decisions to remove, when no such decision had been made. The Secretary of State had nevertheless considered the applications afresh.
2. The applicants relied on Nagre [2013] EWHC 720 Admin and Oludoye [2014] UKUT 00539 IAC in submitting that Article 8 should, in some cases, be considered outside the Rules. On the facts of this case, however, the circumstances could not plausibly support a successful Article 8 claim. All members of the family were adults, there was no reason why they could not return to Pakistan, and the only factor pointing against return was their residence in the United Kingdom. The Secretary of State’s consideration of the Rules and Article 8 more generally was therefore adequate.
3. Sohail’s application had been formulated as an application for leave as his father’s dependant. No separate Article 8 claim based on his full-time education had been advanced. The presence of material noting his education did not alter the application’s formulation, so it was unreal to criticise the decision for failing to determine such a separate claim. Sohail was also an adult when the decision was made, so the section 55 point did not assist him.
4. The Upper Tribunal judge was right to refuse permission to apply for judicial review. Permission to appeal was refused.

• Court of Appeal (Civil Division) — On 14 July 2015, Lord Justice Burnett refused the renewed application for permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Allen refused permission to apply for judicial review at an oral hearing on 3 March 2014, following refusal on the papers.
• Administrative Court — Judicial review proceedings were issued there and later transferred to the Upper Tribunal.