Kaur & Ors v The Secretary of State for the Home Department

A tribunal may refuse a very late attempt to substitute new judicial-review grounds where the proposed grounds are not implicit in the original claim, could and should have been raised earlier, and are advanced without notice. The decision is a case-management exercise under the overriding objective; an appellate court should not interfere without an arguable error.

Contemporaneous decision letters made by the same decision-maker must be read as a whole when deciding whether an apparent typographical error reveals a material factual misapprehension. Under Appendix FM, a child’s derived application is linked to the parent seeking leave under the relevant route. The other parent’s British citizenship or settled status does not itself confer derived leave if the applicant parent fails to qualify.

The appeal arose from three refusals dated 20 March 2014 of applications for leave to remain by a mother and her two dependent children, who had joined the children’s British-citizen father in the United Kingdom. The Upper Tribunal (Immigration and Asylum Chamber) refused permission for judicial review. On the renewed hearing, Upper Tribunal Judge Gill also refused permission to substitute new grounds and rejected an alleged factual error in the children’s decision letters.

The appeal concerned the late amendment, the alleged factual error, the Upper Tribunal’s judicial-review jurisdiction, and the proper construction of Appendix FM.

The appeal was dismissed and the Upper Tribunal’s decision stood.

1. The proposed new grounds were not implicit in the original claim. They were raised 14 months after the challenged decisions, without notice, and in a skeleton argument delivered on the morning of the hearing. They could and should have been raised earlier. The Upper Tribunal had regard to the overriding objective in the Tribunal Procedure (Upper Tribunal) Rules 2008. Its refusal to permit substitution was an unimpeachable case-management decision, with which the Court of Appeal should not interfere absent an arguable error.
2. The apparent reference in the children’s decision letters to both parents’ applications having been refused was either a typographical error or, when the letters were read together, no material error at all. The letters showed that the Secretary of State understood the family application and the father’s British citizenship. The factual grounds therefore had no realistic prospect of success.
3. It was common ground that the Upper Tribunal’s judicial-review jurisdiction was conferred by sections 15 and 18 of the Tribunals, Courts and Enforcement Act 2007, subject to the conditions in section 18(2), with transfer to the High Court under section 18(3) if those conditions were not met. Under section 18(6) and the relevant directions, challenges to the validity of the Immigration Rules were excluded, but permission decisions were not. These jurisdictional matters were not determinative of the appeal.
4. In deference to the parties’ submissions, the court considered the alternative construction of Appendix FM. The applicant’s parent was the mother, who was seeking leave to remain, and her partner was the children’s father, whose British citizenship supplied the relevant settled status. The children’s leave was derived from the grant of leave to the applicant parent. If the mother failed to qualify, the children obtained no derived rights under the Rules merely because their father was British.

There was no need to examine the merits of the underlying refusals under or outside the Rules. Lord Justice Leggatt agreed with the judgment.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 411, the appeal was dismissed and the Upper Tribunal’s decision stood.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Gill refused the renewed oral application for permission to bring judicial-review proceedings and to amend the grounds on 18 May 2015. Permission had previously been refused on the papers by Upper Tribunal Judge Macleman. The proceedings were identified as JR/7585/2014.