As a direct access immigration barrister there are around 10 – 15 applications or so that one makes on a regular basis, ranging from representations to appearing in the Court of Appeal. Last Thursday saw a very unusual application. I had applied for JR on behalf of a client, who to be fair had made numerous applications, some of which looked very similar. This application was predicated upon a relationship with a national with Indefinite Leave to Enter and referred to their child, who obviously was British.
The Upper Tribunal Judge refused permission and stated that the case was TWM – totally without merit – the UTJ had failed to spot the ILE or passport, which were in the bundle but it is fair to say were not highlighted in the grounds.
The grounds of appeal pointed out this error. The UTJ very fairly granted permission to the Court of Appeal.
The HO took the unusual step of applying to have the grant of permission set aside on the basis that it was a miscue of fat and that was that.
I drafted a skeleton argument relying on F (Iran) which identified when is an error of fact an error of law, in my view this being the paradigm of such a case.
The Judge hearing the application clearly did not think much of the HO application and while allowing the HO Counsel every opportunity to make his case dismissed the appeal. The UTJ noted that such a mistake was a classic JR mistake.
The Judge dismissed the HO application and refused to let the SSHD off without paying costs. It seemed to me to analogous to the application to avoid costs of a few months ago. Thankfully the Applicant was not prejudiced and hopefully the matter will fall in their favour, having a British child will plainly help.
If you are presented with an unusual application or are confused by the HO action or inaction please get in touch with my team and come in and see us for consultation. I would urge anyone who is uncertain about their future to get in touch – better to see the real nature of the problem as it may well not actually be that great.
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.