Ahmed v Secretary of State for the Home Department, Court of Appeal - Civil Division, March 07, 2017, [2017] EWCA Civ 118

Issuing Organization:Civil Division
Actores:Ahmed v Secretary of State for the Home Department
Resolution Date:March 07, 2017
 
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Case No: C2/2014/1149

Neutral Citation Number: [2017] EWCA Civ 118

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Upper Tribunal Judge Gleeson

JR/2514/2013

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/03/2017

Before :

LORD JUSTICE McCOMBE

LADY JUSTICE SHARP

LADY JUSTICE THIRLWALL

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Between :

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Mr Basharat Ali (instructed by Aman Solicitors Advocates) for the Appellant

Mr John Paul Waite (instructed by Government Legal Department) for the Respondent

Hearing date: 7th February 2017

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JUDGMENTLADY JUSTICE THIRLWALL :

  1. This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) of 12th March 2014 refusing permission to claim judicial review of a decision by the Secretary of State for the Home Department (SSHD), set out in a letter dated 23rd July 2013, refusing the appellant's application for leave to remain in the United Kingdom. Appeals by the appellant's wife and three adult sons were dependent on this appeal. The three sons now have leave to remain in the UK. Two daughters are settled in the UK; they are married to British citizens. The appeal proceeded on behalf of the appellant and his wife only.

  2. The original grounds of appeals were expansive. Permission was granted on a single ground, that is whether in coming to her decision the Upper Tribunal judge failed to consider a relevant factor under Article 8 (this being a case where the appellant could not succeed under the Immigration Rules). The relevant factor is described on the appellant's behalf as an ``historic injustice''. It is the appellant's case that had the Upper Tribunal judge given proper consideration to that issue, she would have been bound to grant permission to claim judicial review and the Secretary of State would have been required in due course to reconsider the matter.

  3. The grant of permission to appeal in February 2015 prompted the respondent to reconsider the appellant's position and a further decision letter was written on 6th November 2015. As a result this appeal, listed for mid November 2015, was adjourned by consent. The appellant was given 28 days to review his appeal in the light of the letter. By paragraph 4 of the consent order it was ordered ``if the appellant decides to pursue this appeal then he must file and serve amended grounds of appeal within 28 days of this order.'' The appeal is pursued. The document headed ``Amended grounds of appeal'' includes grounds for judicial review of the decision letter of 6th November 2015. Those grounds were pursued in the amended skeleton argument.

  4. I am satisfied that the grounds for judicial review of the decision of 6th November 2015 are not arguable for the reasons I set out later in this judgment. A grant of permission to serve Amended Grounds of Appeal does not, in my view, include permission to serve grounds for a claim for judicial review in respect of a new decision, still less permission to argue those grounds. We considered the grounds so as to bring finality to litigation which has gone on for far too long but it should not be thought that this is the usual course. In this case it meant the time of the court was wasted considering unarguable grounds which had not previously been subject to the filter of permission. This is a road now very well and very recently travelled, see, in particular, the judgments of Underhill and Beatson LJJ in Caroopen and others v SSHD [2016] EWCA Civ 1307, in particular at paragraphs 54, 58, 92 and 93 of the judgments where it is observed that a pragmatic approach prevails in the Administrative Court notwithstanding judgments of this court deprecating ``rolling judicial review'' (see for example the decision of this court in R (Tesfay and others) v SSHD [2016] EWCA Civ 415 at paragraphs 76-83.

  5. Where, rather than or in addition to seeking permission to amend grounds of appeal, a litigant may want to add a claim for judicial review in respect of a later decision this must be made clear to the judge being asked to grant permission to amend the grounds of appeal so that consideration may be given to whether the question of permission should be considered before the hearing of the appeal.

    Facts

  6. The appellant was born in Pakistan in 1961. He and his mother joined his father in this country in 1963. His two sisters were born here. According to the witness statement of Mr Mohammed, a family friend who lives in this country, the appellant's mother moved back to Pakistan...

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