Razu v Secretary of State for the Home Department

On a renewed application for permission to bring what is effectively a second appeal, permission may be granted where a proposed ground raises a point of principle worthy of consideration and cannot be said to have no prospect of success. The court identified two such issues under the Immigration Act 2014, section 117B: whether English-language ability and financial independence can count positively in an Article 8 assessment, and whether little weight must be given to a marriage formed while immigration status was precarious but not unlawful. The merits of those issues were left open. Permission was refused on all other grounds.

The appellant, a Bangladeshi national, challenged refusal of leave to enter and cancellation of entry clearance after admitting that an English-language certificate used in earlier applications had been obtained fraudulently.

The First-tier Tribunal found that exception EX1 in the Immigration Rules was engaged and allowed the appeal under Article 8. Deputy Upper Tribunal Judge Pickup set that decision aside for errors of law, including the mistaken application of EX1 and inadequate consideration of section 117B of the Immigration Act 2014, but did not remake the decision. The central issues before the Court of Appeal were whether the proposed challenges raised points of principle with a prospect of success.

Lord Justice Tomlinson was concerned only with a renewed application for permission to bring what was effectively a second appeal.

1. The challenge to First-tier Tribunal Judge Davis’s grant of permission disclosed no arguable ground. It was accepted that exception EX1 was not engaged because the appellant did not satisfy the suitability requirements in the Immigration Rules. Permission was not granted to pursue the other proposed grounds.
2. The first permitted ground concerned the approach to English-language ability and financial independence under section 117B of the Immigration Act 2014. The Upper Tribunal had relied on paragraph 18 of AM (S 117 B) Malawi [2015] UKUT 0260 (IAC). The issue was whether those attributes could positively enhance an Article 8 claim, rather than merely avoiding adverse consequences arising from their absence. That was a point of principle worthy of consideration. The court did not decide the correct construction of the provision.
3. The second permitted ground concerned the effect of section 117B on a marriage formed when immigration status was precarious. The appellant relied on the distinction between subsection 4, concerning a relationship with a qualifying partner established while the person was unlawfully in the United Kingdom, and subsection 5, concerning private life established while status was precarious. The appellant argued that leave could be curtailed prospectively but not retrospectively under paragraph 323(i) of the Immigration Rules, so that the marriage might have been formed while status was precarious but not unlawful.
4. Although Lord Justice Tomlinson considered the appellant’s construction surprising and regarded the fraudulent certificate and resulting precarious status as highly relevant to the Article 8 assessment, he could not say that the argument had no prospect of success in light of the statutory drafting. Permission was therefore granted on those two grounds only.

• Court of Appeal (Civil Division): On 17 March 2016, Lord Justice Tomlinson granted permission to appeal on two grounds and refused permission on all other grounds.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Pickup set aside the First-tier Tribunal’s decision for errors of law, but did not remake it. His determination was promulgated on 12 June 2015.
• First-tier Tribunal (Immigration and Asylum Chamber): Judge Davis granted permission to appeal on 24 February 2015. Judge Coleman had allowed the underlying appeal under exception EX1 and Article 8.