07432 101 211

As a direct access immigration barrister practising out of London I am still regularly instructed by solicitors and very recently I was in the Court of Appeal doing a strange case. It was an “old style” article 8 case that plainly engaged article 8. The oddity of the case was that mother and child were from the West Indies yet the father was from Africa. The Secretary of State had issued three refusal letters.

Not one of the letters considered:

a. s.55 of the Borders, Citizenship and Immigration Act 2009;

b. that the family would be split up;

c. that notwithstanding that there was a child there had not been an appealable decision made since 2012.

The UTJ refused permission and permission to appeal. The Court of Appeal on papers refused permission but I obtained permission from the Court of Appeal at an oral hearing during which an extremely experienced Judge opined that the Home Office reconsider and hoped that the case would not come back for a full hearing.

This was in late 2015, the matter dragged on and came before the full Court, despite some last minute attempts to settle. The Secretary of State in the letter had considered rules that were not prayed in aid and further did not make any mention of s.55 nor of the potential breakup of the family. The Court of Appeal considered in passing that the decisions were very poor in quality and this should find its way into the published decision.

The Court of Appeal accepted the argument that if the family wanted a right of appeal they should make another application or wait.

While the outcome was for the case was that it was lost it could have been far far worse. After dismissing the appeal both Lord Justices stated that they expected the Secretary of State to take such steps so as to give a right of appeal within around 3 months. Indeed one LJ stated that it would take an “imaginative” argument on the part of the Secretary of State not to have taken such steps.

After the appeal I consulted with senior counsel and we are considering an appeal to the Supreme Court given that the letters make no mention at all of s.55 of the BCIA 2009, it is not possible to read into them as in the case of Alladin [2014] EWCA 1191 that s.55 of the BCIA 2009 had been considered substantively in the decisions.

I will keep readers posted.

Paul Turner is an experienced and highly regard direct access immigration barrister who is the head of Imperium Chambers , 32 Beford Row, London, WC1R 4HE, 07432 101 211 or 0207 242 3488 and a member of the chambers of Goldsmith Chambers, the Temple the chambers of Tony Metzer QC and who can be contacted 7 days a week for assistance.