Israr Shah v The Secretary of State for the Home Department

A Cart judicial review of the Upper Tribunal’s refusal of permission to appeal concerns the lawfulness of that refusal. It does not permit a party to introduce new grounds attacking the First-tier Tribunal’s decision.

Although the High Court’s grant of permission and consequential quashing of a refusal under CPR 54.7A restores the permission application, the Upper Tribunal may disturb the First-tier Tribunal’s decision only if that decision contains an error of law. A judicial review ground which does not establish legal error in the refusal is unlikely to do so.

A tribunal assessing “very significant obstacles to integration” need not apply a caseworker aide-memoire, provided it considers the relevant factors and applies the statutory and Rules language.

The appellant, a Pakistani national with indefinite leave to remain, appealed against a deportation decision following a 40-month sentence for robbery and a lengthy offending history. The First-tier Tribunal dismissed his human-rights appeal, finding that deportation would not be disproportionate despite its serious effect on his wife and British-citizen children.

The First-tier Tribunal and then the Upper Tribunal initially refused permission to appeal. The appellant obtained High Court permission to judicially review the Upper Tribunal’s refusal. As no substantive hearing was requested under CPR 54.7A, that refusal was quashed. The Upper Tribunal then granted permission and considered whether the First-tier Tribunal decision contained an error of law.

The central issues were whether fresh judicial-review grounds concerning integration guidance and persistent offending could undermine the refusal of permission, and whether the First-tier Tribunal’s deportation decision was legally flawed.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no error of law. Its assessment of the evidence, the public interest in deportation, the appellant’s integration, and the effect on his wife and children was comprehensive and legally sustainable.

2. A judicial-review challenge to an Upper Tribunal refusal of permission is directed to the legality of that refusal. It is not a vehicle for new grounds of appeal against the First-tier Tribunal. The integration-guidance complaint and the complaint about “persistent offending” had not been advanced in either application for permission before the tribunals. They could not be raised as new appeal grounds without the Upper Tribunal’s permission.

3. In any event, the integration complaint failed. The respondent’s caseworker instructions were not shown to the First-tier Tribunal. They were an aide-memoire, not a policy conferring a freestanding basis of challenge. The material question was whether the judge considered relevant matters when applying paragraph 399A(c) of the Immigration Rules. The judge had done so. Consistently with Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, the statutory language required no further gloss.

4. The reliance on Achege [2016] UKUT 187 (IAC) was misplaced. That decision concerned whether a person without a sentence of at least 12 months could nevertheless be a foreign criminal. The appellant was a foreign criminal because of his 40-month sentence. His persistent and escalating offending was relevant to the proportionality assessment, independently of that issue.

5. Quashing a refusal after High Court permission under CPR 54.7A does not itself establish an error in the First-tier Tribunal’s decision. Grounds containing misrepresentations or falsities may justify referral to the High Court for consideration of whether those responsible should be required to explain them.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed. The First-tier Tribunal had made no error of law.

• High Court: In August 2017 permission was granted to seek judicial review of the Upper Tribunal’s earlier refusal of permission. As no substantive hearing was requested under CPR 54.7A, the refusal was quashed on 21 August 2017.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to appeal from the First-tier Tribunal was refused on 25 April 2017.

• First-tier Tribunal: The human-rights appeal against deportation was dismissed. Permission to appeal was refused on 3 April 2017.