Saleh Ahmed Handule Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor

Article 8 private life may be engaged when a settled non-national with an established private life in the United Kingdom seeks re-entry after an absence, including where loss of a travel document prevented return. Abbas [2017] EWCA Civ 1393 establishes the narrower rule that Article 8 does not oblige a state to admit a person outside its territory to develop a private life that has not been established there. It does not exclude proportionality where re-entry is sought to resume an existing private life. A tribunal must address proportionality rather than dismissing such a claim summarily. In exceptional cases, a clear error of law and failure to engage with an arguable material point may satisfy the Cart threshold for judicial review.

The appellant, a Somali national, had lived in the United Kingdom from childhood and had been granted indefinite leave to remain. After travelling abroad, he lost his travel document and became stranded outside the United Kingdom. His later application for entry clearance as a returning resident was refused.

The First-tier Tribunal dismissed his appeal. It summarily rejected the private-life aspect of his Article 8 claim, relying on Abbas, and the Upper Tribunal refused permission to appeal without engaging with the argument that Abbas had been misinterpreted. Lang J refused permission to proceed with judicial review under the Cart jurisdiction. The central issue was whether refusal of re-entry could engage the private-life aspect of Article 8 where the applicant sought to resume an established private life in the United Kingdom.

1. Disposition and Cart jurisdiction. The appeal was allowed unanimously. The First-tier Tribunal had made a clear error of law by misinterpreting Abbas. The Upper Tribunal should have recognised an arguable error of law with a real prospect of success and granted permission to appeal. The point was one of general importance, and the consequences for the appellant supplied a compelling reason. The Cart threshold was therefore met. The appellant was also entitled to raise the pure point of law on appeal: he had no obligation to anticipate an unargued submission based on an uncited authority, and the Secretary of State suffered no prejudice.
2. Scope of Abbas. The ratio of Abbas [2017] EWCA Civ 1393 was that Article 8 did not oblige a state to admit a non-national to develop a private life there. That principle concerned a person with no, or no sufficient, established private life in the United Kingdom. It did not establish that private life could never be engaged in an entry-clearance case. The First-tier Tribunal therefore wrongly treated Abbas as imposing such a general bar.
3. Established private life and jurisdiction. A settled migrant’s established private life in the United Kingdom may be engaged by refusal of re-entry, even while the person is outside the jurisdiction. The pre-existing private life supplies the necessary jurisdictional connection for Article 1. There was no principled distinction between interference caused by removal or cancellation of leave while the person was in the United Kingdom and refusal of re-entry after temporary absence. Singh [2015] EWCA Civ 630, AA v United Kingdom [2012] INLR 1, Khan v United Kingdom (2014) 58 EHRR SE15 and Sargsyan v Azerbaijan (2017) 64 EHRR 4 GC supported that conclusion.
4. Proportionality and the returning-resident rules. Once Article 8 private-life rights are sufficiently engaged, proportionality must be assessed. The Immigration Rules reflected a fact-sensitive balance. Relevant matters included the reasons for departure, the reasons for failing to return within two years, time spent in and outside the United Kingdom, and family and other ties. The Court did not determine the ultimate proportionality balance.
5. Orders. Permission to proceed with the judicial review claim was granted, the claim was allowed, the Upper Tribunal’s refusal of permission to appeal was quashed, and permission to appeal to the Upper Tribunal was granted. The matter was remitted to the Upper Tribunal to determine the appellant’s Article 8 private-life appeal on its merits.

• Court of Appeal (Civil Division): allowed the appeal and the judicial review claim; quashed the Upper Tribunal’s refusal of permission to appeal; granted permission to appeal and remitted the Article 8 private-life appeal to the Upper Tribunal.
• High Court, Administrative Court: Lang J refused permission to proceed with judicial review under the Cart jurisdiction.
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal. The decision was made on 24 May 2022 and promulgated on 1 August 2022.
• First-tier Tribunal: dismissed the appeal against refusal of entry clearance on 28 October 2020 and held that the private-life aspect of Article 8 was not engaged.