AD (Pakistan) v Secretary of State for the Home Department

On a renewed application for permission to bring a second appeal, an arguable question whether a narrow immigration rule has been treated as exhaustive of the Article 8 proportionality assessment may satisfy the second-appeal threshold. The court must consider whether removal disproportionately interferes with family or private life, rather than treating the rule as necessarily decisive. A further arguable issue may arise where adverse factual criticisms were not put to witnesses or representatives. Permission was granted, but the substantive proportionality issues were left for determination on the appeal.

The applicant, a Pakistani national, challenged her removal from the United Kingdom on Article 8 grounds. The First-tier Tribunal accepted that she enjoyed family life with her seriously ill British-citizen parents and that removal would interfere with it, but concluded that other family members and state assistance could provide care.

Deputy Upper Tribunal Judge Lever upheld that decision. The applicant renewed her application for permission to bring a second appeal, arguing that the First-tier Tribunal had placed excessive weight on the narrow care provisions in Appendix FM and had made adverse criticisms without giving the witnesses or representatives an opportunity to address them. The central issue was whether those points raised an important point of principle or practice or another compelling reason.

Application granted. Lord Justice Floyd granted permission to appeal on both grounds.

1. On a second appeal, permission should not be granted unless the application raises an important point of principle or practice or there is another compelling reason. The court was satisfied that this threshold was met.
2. The First-tier Tribunal had accepted that the applicant shared family life with her parents and that removal engaged Article 8. It then relied substantially on the care requirements in Appendix FM, particularly the provisions concerning long-term personal care and the inability to obtain adequate care in the country of residence.
3. The court considered that the full court should examine whether the narrow immigration rule relied upon below properly reflected the broad proportionality assessment required under Article 8. The question was arguable because, in ZB (Pakistan) v SSHD [2009] EWCA Civ 834, the Court of Appeal had considered a wider rule and recognised that Article 8 could have significant effect outside the rules.
4. The applicant also raised an arguable procedural-fairness issue. The First-tier Tribunal had made criticisms, including about the applicant’s circumstances and the care arrangements, which had not been put to the witnesses or the applicant’s representatives in argument.

The Court of Appeal did not determine whether removal was disproportionate or whether the First-tier Tribunal’s factual criticisms were correct. Permission was granted for a second appeal, with a time estimate of one day and a panel to include a judge with immigration expertise.

• Court of Appeal (Civil Division): On a renewed application for permission to bring a second appeal, permission was granted: [2016] EWCA Civ 313.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Lever upheld the determination of the First-tier Tribunal.
• First-tier Tribunal: Judge Bruce dismissed the applicant’s appeal against removal from the United Kingdom.