CN (Malawi) & Ors v The Secretary of State for the Home Department

A tribunal’s refusal to adjourn is a case-management decision. An unfortunate reference to authorities that are not directly relevant does not establish an error of law where the tribunal applies the proper procedural test and exercises its discretion fairly.

The duty under the Borders, Citizen and Immigration Act 2009 to safeguard children’s welfare does not require an adjournment whenever further potentially relevant evidence might be obtained.

Permission for a second appeal should be refused where no important point of principle or practice, or other compelling reason, arises.

Malawian parents and their child, who had autistic spectrum disorder and significant special educational needs, challenged refusals of leave to remain. They relied solely on article 8 of the European Convention on Human Rights, arguing that removal would disrupt the child’s education and impair her progress.

The First-tier Tribunal refused an adjournment sought for the child’s presence at the hearing and further medical evidence, then dismissed the appeals. The Upper Tribunal upheld that decision. The applicants renewed their application for permission to appeal, alleging errors concerning the adjournment, section 55 welfare duties, procedural fairness and evidence about provision in Malawi.

The renewed application for permission to appeal was refused.

1. The First-tier Tribunal’s decision whether to adjourn was a case-management decision. The proper question was whether the appeal could be justly determined. The judge’s reference, by analogy, to authorities concerning relief from sanctions was unfortunate because those authorities were not directly in point, but it did not infect the decision with an arguable error of law.
2. The duty under section 55 of the Borders, Citizen and Immigration Act 2009 did not require an adjournment whenever there was a possibility that further evidence might be obtained bearing on the child’s best interests. Both tribunals had been conscious of the child’s significant difficulties and of the family’s circumstances.
3. The tribunals had considered the procedural fairness issue correctly. The First-tier Tribunal was entitled to conclude that the hearing could fairly proceed despite the temporary absence of one parent from the hearing room.
4. The First-tier Tribunal had considered the relevant conditions in Malawi. It found that special educational provision was available in the private sector, that the parents would probably be able to afford it, and that there was no evidence that interruption or variation of the child’s education would cause real and lasting prejudice.
5. This was a second appeal raising no important point of principle or practice and presenting no other compelling reason for the Court of Appeal to intervene. The application was therefore hopeless and was refused.

• Court of Appeal (Civil Division): On 15 March 2016, Lord Justice McCombe refused the renewed application for permission to appeal: [2016] EWCA Civ 526.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeals from the First-tier Tribunal in November 2014; the decision was promulgated on 30 December 2014.
• First-tier Tribunal: Dismissed the applicants’ appeals against the refusals of leave to remain on 2 June 2014.

Permission was refused by the First-tier Tribunal, later granted by the Upper Tribunal, and subsequently refused by Upper Tribunal Judge Kebede and by Lloyd Jones LJ on paper before the renewal in the Court of Appeal.