Court of Appeal reopens appeal to avoid real injustice

Singh v The Secretary of State for the Home Department [2019] EWCA Civ 1504 (22 August 2019)

Hickinbottom LJ recently granted an application pursuant to rule 52.30 of the Civil Procedure Rules and allowed an Indian national’s appeal. His Lordship reopened a final determination of an appeal against a refusal of leave to remain in the UK because Sir Stephen Silber had upheld the refusal of leave to remain in ignorance of relevant new material arising from Lord Carnwath’s judgment in KO (Nigeria) v [2018] UKSC 53, discussed here. Accordingly, there was a compelling reason to allow a second appeal to proceed. Mr Balwinder Singh entered the UK in 2010 as a student and in March 2012 he made a further application for leave to remain on the same basis, supported by an accredited Test of English for International Communication (TOEIC) certificate. But Mr Singh’s application was refused in July 2012 and he remained in the UK unlawfully despite the fact that his TOEIC certificate was considered to be fraudulent and his presence in the UK was not considered to be conducive to the public good. Later in February 2015 he applied for leave to remain on the basis of his family life with his settled Indian partner and his two British children with her both of whom counted as “qualifying children” within the meaning of section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended). The application was refused and Hickinbottom LJ lamented that “regrettably lengthy and convoluted” proceedings ensued, but the parties were not at fault. 

Among other things, the decision-maker was not satisfied that Mr Singh met the suitability requirement set out in paragraph S-LTR.1.6 of Appendix FM of the Immigration Rules because the TOIEC certificate submitted with the March 2012 application was false and fraudulently obtained by use of a proxy such that Mr Singh’s presence in the UK was considered not to be conducive to the public good due to his conduct. And FTTJ Parker dismissed Mr Singh’s appeal. However, UTJ Craig remitted the case and FTTJ Ross then allowed Mr Singh’s appeal on human rights grounds. The Home Office appealed arguing that FTTJ Ross had conflated the best interests of the children with the different question of whether it would be reasonable for them to leave the UK with their parents, in essence FTTJ Ross materially erred in applying section 117B(6) of the 2002 Act. UTJ Jackson agreed with the submission but after his decision the Supreme Court gave judgment in KO (Nigeria) and the SSHD agreed that the appeal should be allowed. Subsequent to some procedural steps in the Court of Appeal, without having sight of the relevant documents, Sir Stephen Silber dismissed Mr Singh’s application for permission to appeal and that event led to an application to reopen the appeal. 

Mr Singh applied under CPR rule 52.30 to reopen the final determination of the appeal by Sir Stephen Silber, submitting that there was a real possibility that he had not considered key submissions in relation to KO (Nigeria) which was clear since the judge failed to refer to those key submissions. He did not mention the fact that the SSHD had conceded that, in light of KO (Nigeria), UTJ’s Jackson’s approach was wrong in law. Sir Stephen Silber did not refer to KO (Nigeria) at all but he did make reference to other matters, such as the negative TOIEC findings, which the later submissions had clarified were no longer being challenged (which again suggested that he had not seen the recent submissions). 

Under CPR rule 52.30(1), despite a final determination, the Court of Appeal may reopen an appeal where: (a) it is necessary to do so to avoid real injustice, (b) the circumstances are exceptional and make it appropriate to reopen the appeal, and (c) there is no alternative effective remedy. (The procedure in CPR rule 52.30(1) also applies to the High Court.) 

These are the pre-conditions for this jurisdiction to arise and CPR rule 52.30(2) clarifies that, for these purposes, “appeal” includes “application for permission to appeal”.

Hickinbottom LJ emphasised that the court’s jurisdiction is exceptional and is exercised rarely. In Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514, Sir Terence Etherton VC held that “the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation.”

Therefore, as held in R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860, the jurisdiction will not be exercised simply because the determination was wrong, but only where it can be demonstrated that the integrity of the earlier proceedings has been “critically undermined” and even then only where there is “a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined”. 

KO (Nigeria) corrected the previous misunderstandings about section 117B(6). Lord Carnwath held that the assessment of what was “reasonable” precluded any balancing of the child’s interests against the public interest in removing foreign nationals on the basis of their conduct.

The parties agreed a consent order that recited the outcome in KO (Nigeria) and they jointly sought remittal of Mr Singh’s case to the UT for redetermination. 

It was very clear from the court file that Sir Stephen Silber was totally ignorant about the key submissions in relation to KO (Nigeria) with the consequence that he was unaware that the SSHD accepted that UTJ Jackson’s approach to section 117B(6) was legally flawed, and was even willing to consent to an order that the appeal should be allowed and the matter should be remitted to the tribunal for redetermination. Consequently, Sir Stephen failed to consider the impact of KO (Nigeria) on Mr Singh’s appeal properly or indeed at all. He had no submission before him that KO (Nigeria) had any effect on Mr Singh’s claim or appeal. With that in mind, Hickinbottom LJ: 

24. In my view, the fact that, when refusing permission to appeal, Sir Stephen Silber did not have before him important and compelling submissions from the Applicant – with most of which the Secretary of State apparently agreed – which had been filed properly and in good time, at the request of the court, critically undermined the proceedings. Whilst it cannot be said that, if Judge Jackson had approached section 117B(6) properly, he would necessarily have allowed the Applicant’s appeal against the refusal of his application for leave to remain, there is a very good chance that on the evidence he would have done so. In those circumstances, the appeal was arguable. Indeed, in my view, the prospects of success on an appeal were high.

Mr Singh’s appeal was a second appeal whereby the second appeal criteria of CPR rule 52.7(2) applied and permission could be granted only if the appeal had a real prospect of success and raised an important point of principle or practice, or there was some other compelling reason for the court to hear it. However, it appeared to Hickinbottom LJ that:

25. … before this court it was of course a second appeal to which the second appeal criteria of CPR rule 52.7(2) applied, i.e. permission could be granted only if the appeal had a real prospect of success and raised an important point of principle or practice, or there was some other compelling reason for this court to hear it. However, it seems to me that, although every case must turn on its own facts, it may be a compelling reason to allow a second appeal to proceed where, due to a misinterpretation of the law by the first appeal court/tribunal as recently clarified, there may be a high risk of the applicant’s article 8 rights being infringed. That is the case here; and, in my judgment, on the facts of this case that would provide a compelling reason to allow a second appeal to proceed. This is not a case in which the appeal should not be reopened because, if reopened, the Applicant would likely not be granted permission to appeal in any event.

The court judged that there would be real injustice in refusing the application to reopen, leaving Mr Singh only the invidious option of making a fresh application for leave to remain on human rights grounds, when his appeal to the Court of Appeal had been wrongly dismissed at the permission stage. It was the court’s view “that such a new application may face hurdles that his current application, on appeal, does not.” 

Hickinbottom LJ found that the criteria in CPR rule 52.30(1) were satisfied and therefore he set aside the determinations of Sir Stephen Silber and UTJ Jackson. The court allowed the appeal and the court remitted the matter to the UT for a redetermination of the appeal from the FTT decision. Mr Singh was quite lucky to win in the Court of Appeal and if he had been forced to make a fresh application for leave to remain then that may have caused him further anxiety because his case had been ongoing for more than seven years and he was badly in need of relief.

Although it is very hard for applicants to have confidence in the very costly system of immigration applications, this judgment should at least restore their confidence in the courts whose duty is to uphold the law. Since his case was so historic, if he had to make a fresh application Mr Singh may well have become stuck in limbo for yet another seven years because of the inefficiencies plaguing the Home Office and the vicious cycle would have continued. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, Children, Court of Appeal, ECHR, Immigration Act 2014, Immigration Rules, Public Interest, Tier 4, Tribunals, UKSC and tagged , , , , , , . Bookmark the permalink.

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