Singh v The Secretary of State for the Home Department

The Court of Appeal may reopen a final determination under rule 52.30 only where reopening is necessary to avoid real injustice, exceptional circumstances make it appropriate, and no effective alternative remedy exists. The jurisdiction is rare. An error alone is insufficient: the integrity of the earlier proceedings must have been critically undermined, with a powerful probability of a different decision absent that defect.

A permission decision may satisfy this standard where properly filed, important submissions were not placed before the judge. Where later binding authority shows that the tribunal applied the wrong legal approach, and the resulting appeal has strong prospects, finality may yield to the need to prevent injustice.

The applicant challenged the refusal of leave to remain on family-life grounds. The First-tier Tribunal initially dismissed his appeal, but that decision was set aside. On redetermination, the First-tier Tribunal allowed the appeal because it was unreasonable to expect his British citizen children and wife to leave the United Kingdom.

The Upper Tribunal set that decision aside and dismissed the appeal. It treated section 117B(6) of the Nationality, Immigration and Asylum Act 2002 as requiring the children's interests to be balanced against the public interest arising from the applicant's conduct.

After the Supreme Court clarified the law, the applicant filed supplementary submissions at the Court of Appeal's request. Although received, they were not placed before the judge who refused permission to appeal. The applicant sought reopening under rule 52.30. The central questions were whether the missing material critically undermined the permission proceedings and whether the statutory conditions for reopening were satisfied.

1. Application granted; appeal reopened and allowed. Rule 52.30 establishes three preconditions: reopening must be necessary to avoid real injustice; the circumstances must be exceptional and make reopening appropriate; and no alternative effective remedy must exist. The jurisdiction is exercised rarely because the injustice must outweigh the strong public interest in finality.

2. A merely wrong determination does not justify reopening. The integrity of the earlier proceedings must have been critically undermined, and there must be a powerful probability that the decision would have differed without that defect. Important and compelling submissions had been filed properly and on time at the court's request, but were not placed before the judge deciding permission. Their omission critically undermined the permission proceedings.

3. The missing submissions addressed KO (Nigeria) [2018] UKSC 53. That decision established that the reasonableness inquiry under section 117B(6) of the Nationality, Immigration and Asylum Act 2002 focuses exclusively on the qualifying child in the real world. It precludes balancing the child's interests against the public interest in removing a parent because of that parent's conduct. The Upper Tribunal had applied the earlier, contrary approach and had therefore erred in law.

4. There was a very good chance that the Upper Tribunal would have allowed the applicant's appeal had it applied section 117B(6) correctly. The proposed appeal was arguable and had strong prospects. Although the second-appeal criteria applied, a compelling reason may exist where a recently clarified legal error creates a high risk that article 8 rights will be infringed.

5. The circumstances were exceptional and refusing reopening would cause real injustice. A fresh application for leave was not an effective alternative remedy because it could face hurdles absent from the existing appeal. The court set aside the permission refusal, granted permission, allowed the appeal by consent, set aside the Upper Tribunal's decision and remitted the matter to that tribunal for redetermination.

1. Court of Appeal (Civil Division): The court granted the rule 52.30 application, set aside the final refusal of permission, reopened the appeal, granted permission, allowed the appeal by consent, set aside the Upper Tribunal's decision and remitted the matter for redetermination.

2. Upper Tribunal (Immigration and Asylum Chamber): On 6 July 2018, Judge Jackson set aside the First-tier Tribunal's decision for error of law, remade the decision and dismissed the applicant's article 8 appeal. Permission to appeal was refused.

3. First-tier Tribunal: On 2 March 2018, Judge Ross allowed the appeal on human-rights grounds, finding it unreasonable to expect the applicant's wife and two British citizen children to leave the United Kingdom.

4. Upper Tribunal: On 25 July 2017, Judge Craig set aside the First-tier Tribunal's earlier dismissal and remitted the appeal for redetermination.

5. First-tier Tribunal: On 23 November 2016, Judge Parker dismissed the applicant's appeal.