Parekh, R (On the Application Of) v Secretary of State for the Home Department

An application for leave to remain outside Appendix FM of the Immigration Rules requires identification of compelling circumstances. The threshold is less strict than exceptionality or very compelling reasons in contexts where those standards apply, but remains demanding. The approach identified in paragraph 33 of SS (Congo) and Others v Secretary of State [2015] EWCA Civ 387 was applied. Bereavement and a wish to live with an adult child, without more, fell far short. Permission to appeal was refused.

The applicant sought judicial review of the Secretary of State’s refusal on 20 June 2013 to grant leave to remain. The Secretary of State found that she did not satisfy rule 276ADE of the Immigration Rules and rejected her claim under Article 8 of the European Convention on Human Rights for leave outside the Rules. Upper Tribunal Judge Coker refused permission to apply for judicial review on 24 July 2014, and Upper Tribunal Judge Allen refused permission to appeal on 16 September 2014. The renewed application concerned whether subsequent Court of Appeal authority required clarification of the test for leave outside the Rules.

1. Permission refused. Lord Justice Tomlinson refused the renewed application for permission to appeal. The proposed grounds were substantially undermined by the subsequent decisions in Singh and Khalid v Secretary of State [2015] EWCA Civ 74 and SS (Congo) and Others v Secretary of State [2015] EWCA Civ 387.
2. Applicable test. There was no need for further clarification. The test for granting leave to remain outside the new rules in Appendix FM of the Immigration Rules was the compelling-circumstances test identified at paragraph 33 of SS (Congo). That formulation was less strict than exceptionality or very compelling reasons, which applied in different circumstances, but it still required compelling circumstances.
3. Application. The applicant’s case rested on her husband’s death in Pakistan, her asserted loss of ties there, and her wish to live in the United Kingdom with her only adult child. Those bare facts fell hopelessly short of the required threshold. The Secretary of State’s finding that she did not meet rule 276ADE(vi), and the conclusion that no exceptional circumstances justified leave outside the Rules, had not been successfully challenged.
4. The Court therefore concluded that this was not an appropriate case in which to grant permission to appeal.

• Court of Appeal (Civil Division): Underhill LJ refused permission to appeal on the papers in June 2015. On renewal, Lord Justice Tomlinson refused permission to appeal on 16 February 2016.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Allen refused permission to appeal on 16 September 2014. Judge Coker had earlier refused permission to apply for judicial review on 24 July 2014.
• Secretary of State: Refused leave to remain on 20 June 2013.