TA (Sri Lanka) v Secretary of State for the Home Department, Court of Appeal - Civil Division, February 21, 2018, [2018] EWCA Civ 260

Resolution Date:February 21, 2018
Issuing Organization:Civil Division
Actores:TA (Sri Lanka) v Secretary of State for the Home Department
 
FREE EXCERPT

Case No: C5/2015/0818

Neutral Citation Number: [2018] EWCA Civ 260

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (Immigration & Asylum Chamber)

Deputy Upper Tribunal Judge Hanbury

IA407782013

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/02/2018

Before :

LORD JUSTICE McFARLANE

- and -

LORD JUSTICE KITCHIN

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Mr Danny Bazini (instructed by JJ Law Chambers) for the Appellant

Mr Rob Harland (instructed by Government Legal Department) for the Respondent

Hearing date : 7 February 2018

- - - - - - - - - - - - - - - - - - - - -

JudgmentLord Justice Kitchin: :

  1. On 25 March 2013 the appellant, a Sri Lankan national, who was born on 24 May 2002, applied to the respondent, the Secretary of State for the Home Department, for leave to remain in the United Kingdom outside the immigration rules, relying on her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as applied by the Human Rights Act 1998. This application was refused on 17 September 2013. The appellant appealed to the First-tier Tribunal (Immigration and Asylum chamber) which allowed her appeal by a decision promulgated on 19 September 2014 (First-tier Tribunal Judge Dineen). The Secretary of State then appealed to the Upper Tribunal (Immigration and Asylum Chamber) which allowed her appeal by a decision promulgated on 19 December 2014 (Deputy Upper Tribunal Judge Hanbury). The appellant now appeals to this court with permission granted by Elias LJ at an oral hearing on 3 November 2016, permission having been refused on the papers by Laws LJ.

    The factual background

  2. The factual background may be summarised as follows. The appellant first entered the UK on 27 August 2004. She was accompanied by her parents, who came here to study, and her brother. In August 2007 the appellant returned to Sri Lanka with her family. In November 2010 the appellant returned to the UK with her family, which now included a further brother. In January 2011 the appellant's parents and her two brothers returned to Sri Lanka, leaving her in the UK with her grandparents. As a result, at the time of her application, the appellant had been in the UK for an uninterrupted period of about 2 years and 10 months and by the time of the hearing before the First-tier tribunal, that uninterrupted period had grown to a little under 4 years, and for the last two of those years she had been cared for by her grandparents. Overall, she had been in the UK for about 7 years.

  3. The appellant's parents divorced in 2013 and her brothers live with their father in Sri Lanka. Their mother, who also lives in Sri Lanka, suffers from a depressive disorder.

  4. On 25 March 2013 the appellant made her application for leave to remain in the UK outside the immigration rules on the basis of her family and private life with her grandparents who are now, by order of the court, her special guardians.

    The correct approach

  5. There was no real dispute between the parties as to the approach to be adopted by the Court of Appeal on an appeal such as this. The appeal is against the determination of the Upper Tribunal. It is only if that determination contains an error of law that the Court of Appeal can allow an appeal from it. If the Upper Tribunal has properly directed itself as to the approach to be adopted on an appeal from the First-tier Tribunal, and has arrived at a conclusion that was open to it, the determination of the Upper Tribunal contains no material error of law, even if this court might have been more generous in its approach to the determination of the First-tier Tribunal: see Adedoyin v SSHD [2012] EWHC Civ 939 at [29].

  6. In R (Iran) v SSHD [2005] EWCA Civ 982, Brooke LJ summarised at [9] the errors on points of law that will most frequently be encountered in practice:

    ``9. ...

    i) making perverse or irrational findings on a matter or matters that were material to the outcome (``material matters'');

    ii) failing to give reasons or any adequate reasons for findings on material matters;

    iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

    iv) giving weight to immaterial matters;

    v) making a material misdirection of law on any material matter;

    vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

    vii) making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.''

  7. Where the Upper Tribunal finds an error of law then it may (but need not) set aside the decision of the First-tier Tribunal. If it does set aside the decision of the First-tier Tribunal then it must either remit the case to the First-tier Tribunal with directions for its reconsideration or re-make the decision: see s.12 of the Tribunals, Courts and Enforcement Act 2007. When permission to appeal to the Upper Tribunal has been granted, the parties should assume that the Upper Tribunal will, if it identifies an error on a point of law and is satisfied...

To continue reading

REQUEST YOUR TRIAL