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As a direct access immigration barrister it is always a huge relief when the Higher Court, whether that be the Upper Tribunal or the Administrative Court grants permission to appeal / apply for judicial review. Today was an excellent day in that permission was granted in an unusual case by LJ Beatson on a case which considers the correct approach to be had when considering article 8 and s.117A – D of the Nationality Immigration and Asylum Act 2002 (“the 2002”) Act.

I have written a few posts on s.117B of the 2002 Act and how it can assist, in today’s case it was s.117C that really proved to be of assistance.

The Appellant in this case had entered the UK when he was 17 and had lived here for 24 years. He had a relevant conviction of 2 years for cultivation of cannabis in 2006 but had not re-offended.

His appeal was refused by the FTT. Permission to appeal was granted by the UT. The UT found that there was no error of law in respect of his article 8 claim, the IJ had found that his removal would not breach or engage his article 8 claim, a decision I thought wrong

Permission to appeal was sought on the basis that the FTT and UT were wrong to hold that there was no violation of article 8.

Sir Stanley Burnton refused permission on the papers in 2013.

Then Appellant’s solicitors renewed the application on time in 2013. However the renewal went astray and the Court of Appeal closed the file.

The solicitors made a new application which was refused. He was detained and removal directions were set. At this point the solicitors contacted me and I asked what had happened to the renewed Court of Appeal hearing. There was then an enquiry and the Court of Appeal acknowledged that they had closed the file in error. The Court of Appeal re-opened the file and listed the matter for an oral hearing.

In the meantime two important changes had taken place, firstly in June 2014 the Appellant had a child with his wife, the child being British and on 28 July 2014 S117A-D came into force.

This meant that when the matter came before the Court of Appeal in April 2015 there were two new factors that the Court had to consider, i.e. the child and the impact of s.117B. Ordinarily of course one could not impugn the earlier decisions of the FTT and UT (when there was no child) by reference to later material, i.e. s.117B. However s.117A- D is couched in mandatory terms it says, see my earlier posts on these important changes, that the Court must have regard to the factors. This put Beatson LJ in an odd position because I argued that he had to have regard to the birth of the child and s.117A – D which supported his case – i.e. s.117C and s.117D meant that the Court had to have regard to the British child and there was no an exception that meant that his removal was no longer in the public interest even though this factual matrix was not before the FTT or UT.

This oddity was affirmed by the UT in the case of Dube [2015] UKUT 00090 which stated that the Court must have regard to these factors and that they could not be treated on a al carte basis. I argued that the Court must have regard to the factors that weighed heavily in his favour.

After some lively discussion, Beatson LJ granted permission on the basis that it was at least arguable that s.117C-D applied notwithstanding that the child and the statute post dated the decisions under challenge.

I consider that this is a case which raises a matter of importance as to how and when s.117B – D will be need to be considered by the Tribunals in appeals and review cases.  I will of course update readers of my site when the case is listed. Though it would not surprise me if the SoS did not concede this case given his length of residence, poor health and British child.

Paul Turner is a highly regarded direct access immigration barrister practising from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.