SS Tanzania v Secretary of State for the Home Department

In a renewed application for permission to appeal, the Court may adjourn rather than decide arguability where the proposed error of law has not been properly formulated or developed. Grounds should identify the alleged legal error succinctly. The skeleton argument should contain necessary background, fuller reasoning and relevant authorities, and address the second appeals test. A change of circumstances after the decision under challenge cannot itself establish an error of law in that decision; it may support a fresh application. A disagreement between the First-tier Tribunal and Upper Tribunal may sometimes assist on the second appeals test, but is not necessarily sufficient.

The applicant, a Tanzanian national, sought permission to renew an application to appeal against the Upper Tribunal’s decision of 28 February 2014. The Upper Tribunal had set aside the First-tier Tribunal’s decision allowing his Article 8 appeal and had remade the decision by dismissing it. The proposed challenge was that the Upper Tribunal had wrongly assessed the proportionality of his removal, particularly in light of his family’s leave to remain.

At the renewal hearing, the applicant was represented at short notice. There were no professionally drafted amended grounds or developed skeleton argument, and the proposed point had not been supported by developed submissions or authority. Further circumstances concerning the applicant’s daughter post-dated the Upper Tribunal’s decision. The central issue was whether the arguability of the proposed error of law should be determined immediately or after proper formulation and development.

1. The renewal application was adjourned. The court declined to determine whether the proposed challenge to the Upper Tribunal’s proportionality assessment was arguable because the point had not been properly developed. The late change of representation, absence of professionally drafted grounds and skeleton argument, lack of developed submissions and absence of authority made an immediate decision contrary to the interests of justice. The application was to be relisted for 45 minutes as early as possible in the Michaelmas term.
2. Events arising after the Upper Tribunal’s decision, including the applicant’s daughter’s pending application for leave, could not constitute an error of law in that decision. They could instead form the basis of a fresh application.
3. The applicant was directed to lodge and serve amended grounds and a skeleton argument within 21 days. The grounds should identify succinctly, in pleaded form, the alleged error or errors of law. Necessary background and procedural history should ordinarily be summarised in the skeleton argument. That document should also develop the grounds, refer to relevant authority and identify why the proposed appeal satisfies the second appeals test. This guidance was given with reference to Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493.
4. The court observed that the Upper Tribunal’s having differed from the First-tier Tribunal may, in some circumstances, assist in satisfying the second appeals criteria. It is not necessarily sufficient by itself, particularly where the Upper Tribunal’s obligation to remake the decision after finding an error of law is not challenged.
5. The Secretary of State was directed to lodge and serve a summary response within 21 days thereafter and had liberty to attend the adjourned hearing. The court expressed no view on the ultimate legal or factual merits, but noted that the Secretary of State might consider the positions of all four family members together if the fresh application prompted reconsideration.

• Court of Appeal (Civil Division) — The renewed application for permission to appeal was adjourned. The court directed amended grounds, a skeleton argument and a summary response.
• Upper Tribunal (Immigration and Asylum Chamber) — On 28 February 2014, Judge Kopieczek held that the First-tier Tribunal had erred in law, remade the decision and dismissed the applicant’s appeal.
• First-tier Tribunal — On 15 November 2013, Judge Martins allowed the appeal, accepting that removal would breach Article 8 of the European Convention on Human Rights.