Akter, R (On the Application Of) v Secretary of State for the Home Department

At the permission stage, the court asks whether the proposed appeal is reasonably arguable. It should not determine the substantive merits where the available evidence is incomplete. An administrative decision concerning removal may also include reconsideration of an underlying application for leave to remain. The decision must be interpreted objectively, having regard to its covering letter and reasons. Where that interpretation is reasonably arguable, the appeal may be allowed and the judicial review proceedings remitted without deciding whether the underlying immigration claim ultimately succeeds. The court applied this approach to the interaction between the Immigration Rules and a sequence of human-rights and removal decisions.

The Secretary of State refused the appellant’s application for indefinite leave to remain based on ten years’ residence, concluding that her continuous lawful residence had been broken after her previous leave expired.

Upper Tribunal Judge Owens refused permission to bring judicial review proceedings on 9 August 2019. The appellant appealed to the Court of Appeal. The dispute concerned whether a decision dated 11 May 2015, described as involving removal, also reconsidered the appellant’s earlier September 2014 application for leave to remain. If so, the appellant argued that the relevant chain of applications, appeal and subsequent grant of leave continued until 9 June 2016. The central issue was whether that argument was reasonably arguable.

Appeal allowed and case remitted. Stuart-Smith LJ gave the judgment, with Coulson LJ and Newey LJ agreeing. The Court of Appeal confined itself to the arguability question and did not decide the merits of the proposed judicial review.

1. The applicable threshold was whether the proposed appeal was reasonably arguable. The court was required to decide that question on the limited information available, and it would be wrong to resolve subsidiary issues for which relevant documents or evidence might be missing.
2. The decision of 11 May 2015 had to be interpreted objectively. Although it generated a right of appeal in the context of removal, its covering letter expressly stated that the appellant’s application for leave to remain had been considered and refused. The reasons addressed the application, the appellant’s human-rights grounds and whether leave should be granted outside the Rules. It was therefore reasonably arguable that the decision went beyond a removal decision and included reconsideration of the underlying September 2014 application.
3. That interpretation made it reasonably arguable that there was an unbroken chain of decisions and actions founded on the September 2014 application, continuing through the successful First-tier Tribunal appeal and leading to the grant of limited leave on 9 June 2016. It was consequently arguable that the grant of leave marked the real conclusion of the original application for the purposes of paragraph 276B of the Immigration Rules.
4. The consent order ending the earlier judicial review proceedings, which recorded an alternative remedy, supported that inference but did not finally determine whether the original refusal had been withdrawn. The court also accepted that consideration of human-rights grounds was part of the removal-decision process, while leaving the substantive issues open.

The case was remitted to the Tribunal with leave for the appellant to bring the judicial review proceedings. Nothing in the judgment limited the issues for determination at the substantive hearing.

• Court of Appeal (Civil Division): Allowed the appeal against the refusal of permission and remitted the case to the Tribunal with leave to bring the judicial review proceedings.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Owens refused permission to bring judicial review proceedings on 9 August 2019, after permission had previously been refused on the papers.
• First-tier Tribunal: In earlier related proceedings, the appellant’s appeal against the 11 May 2015 decision was allowed on Article 8 grounds on 18 May 2016.