Mehmeti v Secretary of State for the Home Department

In an immigration judicial review, the Secretary of State need not undertake a detailed Article 8 proportionality assessment where the applicant provides no material capable of establishing a plausible right to remain. Long residence and delay do not, without supporting evidence, make the claim arguable, particularly where residence has been precarious and delay is partly attributable to the applicant. A challenge to whether an earlier human-rights decision generated an appeal may be resolved as a factual question by drawing inferences from surviving correspondence and the apparent pursuit of an appeal. Where those inferences are irresistible, they provide no arguable ground for permission.

The applicant, a citizen of Kosovo who arrived in the United Kingdom in 1999 and claimed asylum, sought judicial review of the Secretary of State’s 14 February 2013 refusal of representations for leave to remain on human-rights grounds.

Upper Tribunal Judge Rintoul refused permission to apply for judicial review on 10 October 2014. The renewed application for permission to appeal raised two issues: whether an earlier 2002 decision and apparent appeal had already addressed Article 8, making the 2013 representations subject to the fresh-claim procedure in paragraph 353 of the Immigration Rules; and whether the Secretary of State had failed to conduct an adequate Article 8 proportionality assessment, including under rule 276ADE and paragraph 353B. The central question was whether either point was arguable.

Application for permission to appeal refused. Lord Justice Tomlinson rejected both live grounds.

1. The 2000 refusal of asylum could not have considered human-rights grounds because it pre-dated the Human Rights Act. The 6 November 2002 correspondence referred to a one-stop notice, a notice of appeal and the return of reasons for appeal. In light of the apparent appeal, the Upper Tribunal was entitled to infer that the earlier decision and appeal had addressed Article 8. This was a factual finding, and the inference was irresistible. The absence of the original decisions, probably explained by the passage of time, did not make the point arguable.
2. The Article 8 claim was unsupported by material capable of showing a plausible basis for leave to remain. The evidence relied upon merely stated that the applicant had lived in the United Kingdom for 11 years. His residence had been precarious, and the delay was substantially connected with his failure to maintain contact and to attend an earlier appeal. The legacy argument was no longer available, yet no further evidence had been supplied during the following year.
3. The Secretary of State’s decision had considered Article 8 within rule 276ADE and exceptional circumstances under paragraph 353B of the Immigration Rules. In circumstances where there was no material on which a right to remain could be made out, detailed consideration of the human-rights issues or a full proportionality balancing exercise was unnecessary. The principle stated in Singh and SS (Congo) applied.
4. The renewed application therefore had no prospect of success, and permission to appeal against Judge Rintoul’s refusal of permission to apply for judicial review was refused.

• Court of Appeal (Civil Division): On 17 February 2016, the renewed application for permission to appeal was refused. [2016] EWCA Civ 264.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Rintoul refused permission to apply for judicial review on 10 October 2014.
• Secretary of State: On 14 February 2013, the Secretary of State rejected the applicant’s representations for leave to remain on human-rights grounds.