As a direct access immigration barrister I have noticed that the SSHD and the Upper Tribunal taking a harder stance towards article 8 JRs. I have seen cases where it is plain that the couple could not live abroad yet where the Upper Tribunal have found that there were no “insurmountable obstacles”.
I have recently been granted permission to appeal to the Court of Appeal for a direct access applicant. This is a case in which the Upper Tribunal refused permission to bring judicial review proceedings on papers and further at an oral judicial review hearing in circumstances where my client has a British husband with a business in the United Kingdom and significant health problems and a business that would not easily translate.
The Upper Tribunal refused permission and certified the case as totally without merit. This was a shock to me and gravely disturbing to the clients. However, they showed faith in me and we appealed the decision to the Court of Appeal.
I was expecting a fight and an oral hearing. However what was extremely gratifying was that the Court of Appeal Judge granted permission on the papers finding that in his view that the case was arguable. This really shows the difference in approach that can be found. An Upper Tribunal Judge, and it is remembered that the Upper Tribunal have only been dealing with JR for 2 years or so found the case so hopeless as to deny an oral hearing, yet a Court of Appeal Judge who has has likely as not practised as a lawyer, sat as a High Court Judge on almost identical papers found on the papers alone that the case was arguable.
The grant of permission by Lord Justice Treacy of the Court of Appeal is a welcome reminder that a negative decision of the Upper Tribunal does not have to be the end of the road and often is not. Indeed this is not the first such case where the Upper Tribunal have found a case to be “totally” without merit and yet where the Court of Appeal have found the case, on the papers, to be arguable. Its worrying in a way but gratifying that the Court of Appeal is there.
Two other cases spring to mind and I will write about them separately, both were article 8 and one involved not a “totally without merit” certificate but where the Judge who granted permission was Lord Justice Richards who is extremely clever but also tends to give judgments that are perhaps more welcomed by the government than applicants.
My aim is now to engage with the Government Legal Department in order to settle the case before a hearing later this year. My experience has been that actively engaging in a case other than just attending hearings can often lead to a faster positive results for my clients and save them money and stress at the same time.
If you have recently been refused permission in the Upper Tribunal, or any Tribunal or Court for that matter, and would like to discuss the prospects of successfully appealing this refusal, please do not hesitate to contact me and my dedicated team. But as noted above all this shows that you cannot beat a first rate immigration lawyer and team. Paul Turner and his dedicated team are here to offer support and help 24 hours a day and 7 days a week should the case require it.
I have also had cause to obtain injunctions over the Christmas period in respect of removal to Sri Lanka.
My new year resolution with regard to this blog is to keep it updated with any changes in respect of the law but also in respect of current cases I have done as the last year has been the busiest and most successful of my career.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, WC1r 5ET, he also practises from Goldsmith Chambers, the chambers of Anthony Metzer QC and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to litigate and to provide advice and representation directly to the public.