HS (India) v Secretary for the Home Department

On a renewed application for permission to appeal from the Upper Tribunal, the Court of Appeal applied the stringent permission threshold applicable to such applications. Permission was appropriate because the proposed grounds raised important questions of law and the appeal could not, on first examination, be regarded as bound to fail. The substantive issues were left for determination on the appeal.

The applicant challenged the refusal of indefinite leave to remain and directions for his removal. The Secretary of State had applied Immigration Rules that did not govern the application because transitional provisions required the earlier rules to be used. The First-tier Tribunal nevertheless undertook a full Article 8 analysis and dismissed the appeal. The Upper Tribunal accepted the error but upheld the result, concluding that the First-tier Tribunal could determine the Article 8 issue and that reconsideration would have no practical prospect of changing the outcome.

On renewal, the Court of Appeal considered whether the proposed appeal raised important questions concerning the construction of the appeal provisions in the Nationality, Immigration and Asylum Act 2002 and the relationship between common-law unlawfulness and Article 8.

1. Permission granted. This was a renewed application for permission to appeal against the Upper Tribunal’s decision. The more stringent permission test applicable to an appeal from the Upper Tribunal applied.
2. The proposed grounds raised important questions of law. They concerned whether, under the appeal provisions in the Nationality, Immigration and Asylum Act 2002, the Upper Tribunal could dismiss the appeal after finding that the Secretary of State’s immigration decision was not in accordance with the law, and whether a decision unlawful at common law was necessarily incompatible with Article 8 where Article 8 was engaged.
3. The court was not required to resolve those substantive questions at the permission stage. It was sufficient that the proposed appeal could not, on first examination, be seen to be bound to fail.
4. No final determination of the substantive appeal or of the Article 8 merits was made in this judgment.

• Court of Appeal (Civil Division): on 2 July 2015, granted permission to appeal on the proposed questions of law. The substantive appeal was not decided in this judgment.
• Upper Tribunal (Immigration & Asylum Chamber: dismissed the applicant’s appeal against the First-tier Tribunal’s decision. It accepted that the Secretary of State had applied the wrong Immigration Rules, but upheld the result after considering the Article 8 claim.
• First-tier Tribunal: dismissed the appeal against the refusal of indefinite leave to remain and removal directions, applying a full Article 8 analysis.