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

Permission to appeal in an immigration judicial review requires a properly arguable public law error or another compelling reason. Where family life was formed while one partner’s immigration status was precarious, removal of the non-national partner will breach Article 8 only exceptionally. Under paragraph EX.1(b) of Appendix FM to the Immigration Rules, insurmountable obstacles must be assessed against the evidence, including the severity of the relevant condition and the care and medication available in the proposed country of relocation.

The applicant, a Jamaican national, sought permission to appeal from the Upper Tribunal (Immigration and Asylum Chamber), which had refused permission to apply for judicial review of the Secretary of State’s refusal of leave to remain.

He relied on paragraph EX.1(b) of Appendix FM to the Immigration Rules, asserting that his wife’s mental health created insurmountable obstacles to family life continuing in Jamaica. He also relied on Articles 3 and 8 of the European Convention on Human Rights and matters outside the Rules.

The renewed application alleged inadequate reasoning, an insufficient balancing exercise and failure to assess the reasonableness of relocation. The central issue was whether the proposed appeal was properly arguable.

1. Application refused. The renewed application for permission to appeal was not properly arguable, and there was no other compelling reason to grant permission.
2. The Upper Tribunal was entitled to focus on the applicant’s wife’s mental health because that was the primary evidential foundation of the application and the renewed notice concentrated on insurmountable obstacles arising from that condition.
3. The assessment under paragraph EX.1(b) of Appendix FM to the Immigration Rules was not arguably erroneous. The Upper Tribunal had considered the wife’s medical history, found that her symptoms were not so severe as inevitably to create insurmountable obstacles, and identified the absence of evidence about care and medication available in Jamaica.
4. The claims under Articles 3 and 8 raised the same essential issues. The applicant therefore had no real prospect of showing that the Upper Tribunal’s assessment of the challenges to the decisions under and outside the Rules was wrong.
5. Where family life was created in the knowledge that one partner’s immigration status was precarious, removal of the non-national family member would breach Article 8 only exceptionally. The circumstances relied on did not make that conclusion reasonably arguable.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On a renewed oral application, Mr Justice Moylan refused permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Freeman refused permission to apply for judicial review of the Secretary of State’s refusal of leave to remain.
• Secretary of State for the Home Department: Application for leave to remain refused by letter dated 7 August 2013.