Immigration – Leave to remain. Singh v Secretary of State for the Home Department

Immigration – Leave to remain. The fact that, when refusing permission to appeal, the judge had not had before him important and compelling submissions from the applicant, which had been filed properly and in good time, at the request of the court, had critically undermined the proceedings. Accordingly, the Court of Appeal, Civil Division, reopened the appeal and remitted it to the Upper Tribunal (Immigration and Asylum Chamber) for determination of the applicant’s appeal against the respondent Secretary of State’s refusal of his application for leave to remain on the basis of family life.

The respondent Secretary of State refused the applicant Indian national leave to remain on the basis of family life. The applicant’s appeal was initially dismissed by First-tier Tribunal (Immigration and Asylum Chamber) (the FTT), but set aside by the Upper Tribunal (Immigration and Asylum Chamber) (the UT) and remitted.

The FTT allowed the applicant’s appeal on human rights grounds, but the UT concluded that the FTT’s decision involved an error of law which required it to be set aside and dismissed the applicant’s appeal against the Secretary of State’s refusal of his application for leave.

The applicant renewed his application for permission to appeal further and the parties were to make written submissions on the effect of KO (Nigeria) v Secretary of State for the Home Department and other cases (Equality and Human Rights Commission intervening) ([2019] 1 All ER 675) on the issues before the court. The applicant sent to the court, by recorded delivery, a supplementary skeleton argument, relying on KO (Nigeria) and submitting that the UT had erred in law by not applying the approach to s 117B(6) of the Nationality, Immigration and Asylum Act 2002 it required. The judge dismissed the application for permission absent the applicant’s submissions.

The applicant applied, under CPR 52.30, to reopen the final determination of the appeal on the ground that there was a real possibility that he had not considered key submissions, as evidenced by the fact that the judge did not refer to them, including those in relation to KO (Nigeria).

The court file made clear beyond all doubt that, when refusing permission to appeal, the judge had not had before him the recent material. He had not known that the Secretary of State had accepted that the UT’s approach to s 117B(6) had been wrong in law, and had been willing to consent to an order that the appeal be allowed and the matter remitted to the UT for redetermination. As a result, the judge had failed to consider the effect of KO (Nigeria) on the appeal, properly or (apparently) at all (see [23] of the judgment).

The Court of Appeal remitted it to the Upper Tribunal

Source: LexisNexis