Gurung, R (on the application of) v Secretary of State for the Home Department

On a renewed application for permission to appeal, the court must consider whether the proposed grounds have a real prospect of success and satisfy the requirements of Civil Procedure Rules 1998 (CPR) Part 52.6. Grounds raising arguable errors about the scope and operation of an immigration policy may meet that threshold where they could affect the outcome. Permission was granted because the challenge to the treatment of dependants under the Legacy Programme had a real prospect of success. The appeal was directed to a constitution of three judges.

The applicant challenged the Secretary of State’s decision of 1 September 2014 refusing her application for leave to remain. The Upper Tribunal dismissed her judicial review claim on 28 January 2016. Laws LJ subsequently refused permission to appeal on the papers on 17 August 2016.

The renewed application concerned the applicant’s admission that she had obtained entry clearance by deception, her husband’s grant of indefinite leave to remain under the Legacy Programme, and the refusal to regularise her status in line with his. The applicant argued that the Upper Tribunal had misunderstood the scope of the Legacy Programme and the basis on which her husband’s leave was granted.

Permission to appeal

Application granted. Beatson LJ granted the renewed application for permission to appeal and directed that the case be heard by a constitution of three judges, one of whom could be a puisne judge. The estimated hearing time was half a day.

1. The proposed appeal challenged the Upper Tribunal’s dismissal of judicial review proceedings concerning the Secretary of State’s refusal to grant the applicant leave to remain. The merits of those underlying immigration issues were not finally determined at this stage.
2. The first proposed ground was that the Upper Tribunal had wrongly treated the Legacy Programme as applying only to asylum cases that had not been concluded before March 2007. The applicant relied on the contention that the programme also covered refused asylum claims where there was no indication that the person had left the United Kingdom.
3. The second proposed ground was that the Secretary of State had wrongly treated the husband’s indefinite leave to remain as having been granted under his original asylum application. The applicant argued that the Legacy Programme involved a separate process and that the relevant guidance did not limit the programme to cases awaiting an initial decision.
4. Although the Upper Tribunal’s judgment was careful and well structured, Beatson LJ concluded that the grounds had a real prospect of success and satisfied the requirements of Civil Procedure Rules 1998 Part 52.6. Permission was therefore granted. The direction for a three-judge constitution left the substantive appeal to be determined at the subsequent hearing.

• Court of Appeal (Civil Division): On 5 April 2017, Beatson LJ granted the renewed application for permission to appeal and directed a hearing before three judges.
• Court of Appeal (Civil Division): Laws LJ refused permission to appeal on the papers on 17 August 2016.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Canavan dismissed the applicant’s judicial review claim on 28 January 2016.