SE (Mauritius) & Anr v Secretary of State for the Home Department [2017] EWCA Civ 2145: Court of Appeal dismisses appeal where it was misled into granting permission

The Appellants are nationals of Mauritius who since 2005 have resided in the UK. Prior to arriving in the UK they had spent a number of years in Italy. Their application for indefinite leave to remain was refused by the SSHD in 2013. In 2014 their appeal to the First-tier Tribunal succeeded under Appendix FM of the immigration rules and section 55 of the Borders, Citizenship and Immigration Act 2009 (failure to safeguard and promote their child son’s welfare). The Upper Tribunal allowed the Secretary of State’s appeal on the basis that the FtT had erred by considering the position upon return to Italy not Mauritius. In re-making the decision, the UT determined that the Appellants could not satisfy the “no ties” criterion under paragraph 276ADE(vi) per Ogundimu v SSHD [2014] Imm AR 422. The Appellants’ Article 8 claim outside the immigration rules otherwise failed (s.117B, Nationality, Immigration and Asylum Act 2002).

The Appellants appealed to the Court of Appeal. In a renewed permission application before Vos LJ permission was granted based on a misrepresentation that the UT had not explained the legal error it found in the original decision of the FtT. This was wrong. The legal error was contained in the first decision of the UT which was not shown to the Court of Appeal. At the full hearing of the appeal on 6 December 2017 Flaux and Moylan LJJ accepted the explanation provided by counsel for the Appellants that when she had appeared before Vos LJ she had been unaware of the earlier judgment. The Appellants’ solicitor was required to provide an explanation to the Court and in a letter which followed the hearing similarly explained that he had himself also been unaware of the earlier judgment. Both of these explanations were accepted by the Court which concluded that Vos LJ had been misled, albeit inadvertently.

Having heard full argument in a judgment handed down on 15 December the Court of Appeal dismissed the appeal.

David Mitchell was instructed by the Government Legal Department on behalf of the Secretary of State for the Home Department.

Click here to read the full judgment.

15th December 2017