SE (Mauritius) & Anor v The Secretary of State for the Home Department

On an appeal against an immigration decision, the Upper Tribunal may remake the decision and make new factual findings after identifying a material error of law. It must assess the facts at the hearing date, including relevant post-decision events.

The “no ties” requirement in the Immigration Rules requires a rounded assessment of the applicant’s own connections with the proposed country of return. Favourable public-interest factors under section 117B do not determine Article 8 proportionality. Removal may remain proportionate after balancing family and private life against effective immigration control.

The first appellant, a Mauritian national, applied for indefinite leave to remain with her husband. The First-tier Tribunal allowed the appeal under paragraph EX.1 of Appendix FM, focusing on the effect of removal on their son and on a possible return to Italy.

The Upper Tribunal found a material error of law because the decision under appeal concerned removal to Mauritius. It set aside the First-tier Tribunal’s decision, made new findings, and dismissed the appeal under paragraph 276ADE(vi) and Article 8. The appeal concerned the Upper Tribunal’s jurisdiction, the date for assessing the facts, the meaning of “no ties”, and Article 8 proportionality.

The appeal was dismissed.

1. Material error and remaking. The First-tier Tribunal’s reasoning addressed only the consequences of the family returning to Italy. The Secretary of State’s decision required consideration of whether it was unreasonable to expect the appellants to return to Mauritius under paragraph EX.1 of Appendix FM. The Upper Tribunal was therefore entitled to find a material error of law. Under sections 12(2) and 12(4)(b) of the Tribunals, Courts and Enforcement Act 2007, it could choose to remake the decision and make appropriate findings of fact without preserving the First-tier Tribunal’s findings.
2. Date of assessment. This was an appeal against an immigration decision, rather than a judicial review. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 entitled the Upper Tribunal to consider evidence arising after the Secretary of State’s decision. It was therefore entitled to consider that the son had obtained Italian citizenship, withdrawn his appeal, ceased to be a child, and begun university. This approach was supported by MA (Pakistan) v SSHD [2016] EWCA Civ 705.
3. “No ties”. The Upper Tribunal correctly applied Ogundimu v SSHD [2013] UKUT 60 (IAC). The inquiry requires more than remote or abstract links, a continued connection with life in the proposed country, and a rounded assessment of all relevant circumstances. It concerns the appellants’ own ties, not those of their son. Their nationality, family connection in Mauritius, age and work history were relevant, notwithstanding their long absence. The assessment was also consistent with SSHD v Bossadi [2015] UKUT 42 (IAC).
4. Article 8. The Upper Tribunal correctly directed itself by reference to R (on the application of Razgar) v SSHD [2004] UKHL 27 and section 117B of the 2002 Act. The statutory factors were not determinative. The Upper Tribunal balanced the appellants’ family and private life, their son’s financial dependency, their ability to work in Mauritius, and their European residence against the public interest in effective immigration control. Its conclusion that removal was proportionate was neither irrational nor perverse.

1. Court of Appeal (Civil Division): dismissed the appeal.
2. Upper Tribunal (Immigration and Asylum Chamber): found a material error of law in the First-tier Tribunal’s decision, set it aside without preserved findings, remade the decision, and dismissed the appeal.
3. First-tier Tribunal: allowed the appeal under paragraph EX.1 of Appendix FM.