Younguimissa-Ntsoko, R (on the application of) v Secretary of State for the Home Department

Permission for a Cart judicial review requires an important point of principle or practice, or another compelling reason. A compelling reason is legally compelling. The remedy remains exceptional because it would otherwise create a further judicial process after two unsuccessful appeals.

In assessing whether removal interferes with family life, the court may consider the practical reality of whether family members can continue living together. It is not necessary to analyse the position solely by reference to the destinations specified in removal decisions where the family can make arrangements to remain together in either country. The seven-year residence of children and section 55 considerations must still be taken into account, but the family’s ability to remain together may be a material factor.

The claimants challenged the Upper Tribunal’s refusal of permission to appeal from a First-tier Tribunal decision dismissing their appeals against immigration decisions. The Secretary of State had refused applications for further leave to remain and had made removal decisions specifying the Democratic Republic of the Congo for three claimants and Nigeria for the second claimant.

The First-tier Tribunal concluded that the family could return together to either country, and that it was reasonable for the children to leave the United Kingdom notwithstanding their continuous residence of more than seven years. The Upper Tribunal found no arguable error of law. The central issues were whether the removal decisions required the family to be separated, whether the First-tier Tribunal had properly considered paragraph 276ADE of the Immigration Rules and section 55, and whether the claim satisfied the second appeal test.

1. Application refused. The claimants failed to show an important point of principle or practice, or another compelling reason, justifying permission for judicial review of the Upper Tribunal’s refusal of permission to appeal.
2. The second appeal test makes judicial review an exceptional remedy. A compelling reason is legally compelling, although political or emotional considerations may add weight to legal arguments. International law does not require a further appeal, so there must be a compelling reason for subjecting an issue already rejected twice to a third judicial process. This approach was drawn from PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988.
3. The First-tier Tribunal was entitled to find that the family could remain together in either the Congo or Nigeria. The removal decisions did not require immediate removal or prevent the family from making arrangements to travel to one country together. Analysing the case solely by reference to the specified removal destinations would ignore the practical reality identified by the tribunal.
4. That finding was also relevant to the children’s seven-year residence under paragraph 276ADE(4) of the Immigration Rules. The First-tier Tribunal had considered the seven-year policy and was entitled to treat the family’s ability to remain together as relevant to whether it was reasonable for the children to leave the United Kingdom.
5. The section 55 issue disclosed no arguable error. Section 55 considerations formed part of the Rules and had been considered by the First-tier Tribunal, which also referred expressly to section 55.
6. No order for costs was made because the interested party had persistently failed to comply with court orders, causing unnecessary hearings and costs.

• First-tier Tribunal: Appeals against the Secretary of State’s immigration decisions were dismissed on 13 March 2014.
• Upper Tribunal (Immigration and Asylum Chamber): Permission to appeal was refused on 13 May 2014; the tribunal found no arguable error of law.
• High Court (Administrative Court): Permission for judicial review was refused.