Secretary of State for the Home Department v MR

Permission to appeal should not be granted where the grounds, properly analysed, amount only to disagreement with the First-tier Tribunal’s assessment of evidence. An application must identify a recognisable error of law with sufficient particulars. A permission judge must give focused reasons for granting or refusing permission on each ground; merely stating that grounds are arguable is unsatisfactory. This duty does not require elaborate analysis. In most cases, concise reasons will suffice.

The Secretary of State refused the respondent, a Brazilian national and primary carer of her British child, a derivative residence card under the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal allowed the respondent’s appeal. It found, on the evidence, that the child could not live with her father or otherwise remain in the United Kingdom if the respondent had to leave. The Secretary of State appealed to the Upper Tribunal, contending that the First-tier Tribunal should have reached a different conclusion on the evidence.

The central issue was whether the grounds disclosed an arguable error of law, rather than a disagreement with factual findings.

1. The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s decision affirmed. The First-tier Tribunal had made careful, discrete findings on the evidence concerning the child’s father, his family circumstances, contact arrangements and the practical possibility of the child living with him. There was no allegation of legal misdirection.

2. The Secretary of State’s grounds did not identify an error of law. They were, in substance, a simple challenge to the First-tier Tribunal’s assessment of evidence and its factual conclusion that the father could not care for the child. Such a quarrel cannot properly found permission to appeal.

3. An application for permission must clearly and comprehensibly identify the alleged errors of law and the particulars supporting them. Applying Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), a permission judge should not have to search the grounds to discover their legal basis. The present application did not meet that standard and disclosed no arguable error.

4. The grant of permission was also inadequately reasoned. It was not sufficient simply to say that the grounds were arguable. A reasoned decision is required on every ground, whether permission is granted or refused. The reasons may ordinarily be concise and focused; a detailed or burdensome analysis is unnecessary. Observance of that discipline would have shown that this appeal was unmeritorious.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal and affirmed the First-tier Tribunal’s decision.
• First-tier Tribunal: allowed the respondent’s appeal against the refusal of a derivative residence card.