The Secretary of State for the Home Department v Haseeb Ahmed

A respondent to the Secretary of State’s appeal to the Upper Tribunal has no appeal of his own to withdraw under rule 17. A purported withdrawal of his case may leave the Secretary of State’s appeal unopposed, but cannot itself compel its discontinuance.

A late application for permission to appeal, granted without an extension of time, may be challenged before a substantive Upper Tribunal decision. Under rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, however, the procedural irregularity does not invalidate the grant or ensuing decision once that stage has passed.

For Article 8, section 117B(6) precludes reliance on the public interest in removal where its parental-relationship and reasonableness conditions are met.

The Secretary of State refused the claimant leave to remain, alleging deception in a TOEIC test and finding that he did not meet the relevant family-life requirements. The First-tier Tribunal allowed his appeal under the Immigration Rules, finding a genuine and subsisting parental relationship with his British child and that it would not be reasonable to expect the child to leave the United Kingdom.

The Secretary of State obtained permission to appeal. Following an erroneous treatment of the claimant’s solicitors’ correspondence as a withdrawal, an earlier Upper Tribunal decision was set aside on appeal to the Court of Appeal and the matter remitted. The claimant then contended that the Secretary of State’s original permission application had been late.

The issues were whether that procedural objection could now be taken, whether the First-tier Tribunal’s failure to determine deception was material, and whether Family Court material had been disclosed lawfully.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal had erred by declining to decide whether the claimant had used deception in taking the TOEIC test. That issue was relevant to the suitability requirements and to the operation of EX.1 of the Immigration Rules. The error did not require the decision to be set aside.

2. The First-tier Tribunal’s unchallenged findings established that the claimant had a genuine and subsisting parental relationship with a qualifying British child and that it would not be reasonable to expect the child to leave the United Kingdom. By section 117B(6) of the Nationality, Immigration and Asylum Act 2002, the public interest did not require his removal. His individual conduct and the practical likelihood that the child would leave were irrelevant to that statutory inquiry. The appeal would therefore have been allowed even if the judge had expressly addressed the statutory provision.

3. A person who is merely the respondent to the Secretary of State’s Upper Tribunal appeal cannot withdraw an appeal he does not have under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008. A notice seeking to withdraw that person’s case may, with consent, leave the Secretary of State’s appeal unopposed; it does not terminate the proceedings.

4. The claimant could not, in the circumstances, raise the Secretary of State’s late permission application. Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 preserves the validity of a grant made without extending time unless the point is raised before a substantive Upper Tribunal decision. The claimant had waived any entitlement to object. The Tribunal treated the application as made directly to it, waived the relevant Upper Tribunal requirements and granted permission.

5. Material from Family Court proceedings must not be disclosed in breach of statutory or procedural restrictions. Such disclosure may amount to contempt. Immigration judges must be alert to the issue.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision was not set aside.

• Court of Appeal: By consent, allowed the claimant’s appeal against the earlier Upper Tribunal decision and remitted the matter to the Upper Tribunal. It held that the solicitors’ correspondence should not have been treated as a withdrawal and that there was no basis to set aside the First-tier Tribunal’s decision on that basis.

• First-tier Tribunal: Allowed the claimant’s appeal against the Secretary of State’s refusal of leave to remain, on the basis of his parental relationship with his British child.