C2/2014/2530 
Neutral Citation Number: [2015] EWCA Civ 1046
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL 
(IMMIGRATION AND ASYLUM CHAMBER) 
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Wednesday, 29 July 2015
 
B e f o r e: 

LORD JUSTICE UNDERHILL 

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Between: 
THE QUEEN ON THE APPLICATION OF TETTEH 
Applicant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent 
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DAR Transcript of the Stenograph Notes of  
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Mr Z Jafferji (instructed by Kesar & Co Solicitors) appeared on behalf of the Applicant

Mr G Lewis (instructed by Government Legal Department) appeared on behalf of the Respondent
 
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J U D G M E N T
1.	LORD JUSTICE UNDERHILL:  The Applicant is a Ghanaian national born on 4 June 1980.  She came to this country in 2002 with entry clearance as a visitor.  That expired in 2003, but she has been here ever since as an overstayer.  In 2008 she met her current partner, a British national called Lawrence Onochie, and they began living together as a couple in 2009.  
2.	In March 2012 the Applicant via her solicitors Kesar & Co submitted an application for leave to remain "outside the Rules" on the basis of her Article 8 rights.  It is material to mention at this point that she relied expressly, though only in the alternative, on the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 819.  
3.	By a decision letter dated 26 April 2013 UKBA refused leave to remain on the basis that her case did not fall within the terms of the Rules, which by that time incorporated the new regime applicable to Article 8 claims introduced with effect from 9 July 2012, the specifically applicable provision in this case being Appendix FM.  There was, as was standard at that time, though practice has since changed, no separate consideration by the UKBA of the Applicant's claim under Article 8 outside the Rules or in particular of the claim by reference to Chikwamba.  
4.	On 18 July 2013 the Applicant issued proceedings in the Administrative Court claiming judicial review of that decision.  Alternative grounds of challenge were raised, the first under the Rules and the second under Article 8.  On 4 February 2014 permission was refused on the papers by Mr Ben Emmerson QC sitting as a Deputy High Court Judge.  
5.	The Applicant renewed her application, which under the new regime fell to be considered in the Upper Tribunal.  At an oral hearing on 24 July 2014 Upper Tribunal Judge Hanson again refused permission.  
6.	The Applicant applied for permission to appeal against that decision.  When the application came before me on the papers, I adjourned it to an oral inter partes hearing.  This is that hearing.  
7.	In my order I drew attention to my particular interest in the third of the grounds pleaded by the Applicant, which was concerned with the Chikwamba decision, and identified that as the reason why I would be assisted by representations from the Secretary of State.  By an unfortunate piece of maladministration of some kind, that did not come to the attention of counsel, Mr Gwion Lewis, who was not instructed to appear before me until this morning.  He was not in a position to deal in any detail with the relevant authorities.  The Applicant was represented by Mr Jafferji of counsel, who also appeared before Judge Hanson and for whose submissions I am grateful.  
8.	The appellant's notice pleads, as I have said, three grounds of appeal, which I take in turn.  
9.	The first ground is that since the Secretary of State's entitlement to proceed by reference to Appendix FM depends on the terms of paragraph A277C of the Immigration Rules, she was obliged to decide specifically in the Applicant's case whether it was appropriate to do so: the relevant provision uses the phrase "where the Secretary of State deems it appropriate".  What Mr Jafferji said was that it was apparent that the decision maker had proceeded simply on the basis that he or she was obliged to proceed under paragraph A277C and had not made any consideration whether it was appropriate to do so.  
10.	Frankly, I am not sure where this point would have got the Applicant anyway, but it is in my judgment not even arguably open to her as a result of the decision of this court in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74, where precisely the same point, which had been raised by Mr Malik of counsel, was rejected: see paragraph 53 of my judgment.  I do not give permission to proceed on this ground.  
11.	The second ground is in effect that the Secretary of State in her decision letter failed to consider whether the Applicant was entitled to leave to remain outside the Rules.  As I have already observed, that was indeed the standard practice on the part of the Secretary of State at that time and the same point was taken in Singh ‑‑ or, more accurately, in Khalid ‑‑ (see paragraph 69 of my judgment), and represents, so far as it goes, a legitimate ground of challenge.  
12.	However, as we went on to hold in Ms Khalid's case, that did not entitle the Applicant to relief unless she could show that she did in fact have an arguable Article 8 case.  Mr Jafferji submitted that the Applicant in this case did so and relied on the very full and well prepared witness statements and supporting documents submitted to the Secretary of State with the original application for leave to remain.  Judge Hanson had all the same material before him.  He ‑‑ having reviewed it, I am sure, carefully ‑‑ came to the conclusion that, however well‑expressed it might have been, it did not demonstrate any exceptional circumstances of the kind which the case‑law makes clear will be necessary in the case of someone like the Applicant, who has formed the relationships on which she relies for the purposes of an Article 8 claim when her immigration status was precarious.  This is not a case, for example, where she has been here since childhood.  On the contrary, she grew up and had her first education in Ghana.  It is not a case where she has any children here.  I am bound to say I see a good deal of force in Judge Hanson's conclusion, but before saying any more about this ground, I turn to ground 3.  
13.	The third ground is the ground based on the Chikwamba decision, which held, as it was helpfully summarised in the case of Agyarko, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 440, that:
i.	"There would be a violation of Article 8 if the applicant for leave to remain in that case were removed from the United Kingdom and forced to make an out‑of‑country application for leave to enter which would clearly be successful, in circumstances where the interference with her family life with her husband associated with the removal could not be said to serve any good purpose."

14.	(See per Sales LJ at paragraph 31). 
15.	The Applicant says that that precisely covers her case.  She says that if she were removed to Ghana, she would be entitled to apply from there for leave to enter as the fiancée of Mr Onochie, that that application was bound to succeed and that it would accordingly be pointless to make her go through that process for no good reason.  That point was, as I have said, raised by Kesar & Co in their letter accompanying her application and was not addressed by the UK Border Agency in its distinctly formulaic decision letter.  
16.	That is the ground that troubled me when I considered the case on the papers.  At that point the decision in Agyarko was in the pipeline, and I referred to it on that basis, but it had not yet been decided.  
17.	The Chikwamba aspect of the case is not, as I have said, expressly referred to in the decision letter.  The formal position must be, as in relation to ground 2, that the failure of the Secretary of State to deal with the point renders the decision formally defective and that permission ought to be granted unless it is clear that the Chikwamba argument has no realistic prospect of success.  The question is whether that is so.
18.	I do not find that question altogether easy to answer.  I am far from sure that the Chikwamba point would succeed in the Applicant's case.  It is true that in some respects her case is stronger than that of Mrs Agyarko and Mrs Ikuga, whose Chikwamba claims were unsuccessful in Agyarko, because she did expressly raise the point in her application and because, as Mr Jafferji points out, the material submitted with the application for leave to remain seemed to show, although the point was not addressed as such, that there would be no problem with the minimum income provision of the Rules.  On the other hand, it is a good deal less strong on its facts than Chikwamba itself.  There is no child involved.  The hardship of going back to Ghana is much less.  I am not in a position to say whether it is indeed the case that her application is bound to succeed on the basis of the information that I have seen.  I have accordingly frankly hesitated on this point.  
19.	What in the end has decided me that this is a proper case for permission is the fact that not only, as I have said, did the Secretary of State not deal with the point, but nor was it dealt with by Upper Tribunal Judge Hanson.  He referred to it at the beginning of his judgment, but did not return to it thereafter.  That may not be a criticism of him, because it is not clear exactly how Mr Jafferji put his submissions; but in circumstances where the underlying decision of the Secretary of State was detective I think that doubtful points of that kind should go in the Applicant's favour.  
20.	I would therefore give permission to appeal on ground; 3 and because there is evidently a degree of linkage between that and ground 2 ‑‑ though how much linkage may be a matter for argument ‑‑ it seems to me that I should give permission on ground 2 as well.  
21.	In the course of his oral submissions, it became clear that Mr Jafferji also wished to challenge the decision of the Secretary of State that there were no insurmountable obstacles to Mr Onochie accompanying the Applicant to Ghana if removed.  He pointed out that that had been expressly addressed in Mr Onochie's witness statement, but there is nothing but the most formulaic rebuttal in the Secretary of State's letter.  In circumstances where leave is being given on other points, I would give permission on that point also and would give the Applicant 14 days to lodge amended grounds in the underlying judicial review proceedings.  
22.	I have considered carefully whether the proceedings should be retained in this court.  There is arguably, though I am not sure on a careful reading this is really the case, some tension between the decision in Agyarko and what appears to be some of the other Chikwamba decisions.  Mr Jafferji suggested it would be helpful to have an authoritative summary of the present position from this court.  But on balance, I think the right course is for the Upper Tribunal, with its considerable experience in this field, to conduct the substantive judicial review.  If, which I hope will not be the case, there is need for a further appeal because of some uncertainty in the law, this court could then consider the issues with the benefit of the Upper Tribunal's full consideration.  
23.	I particularly want to emphasise that the fact that I have granted permission should not be treated by the Upper Tribunal as indicating any particular steer about the ultimate prospects of success on the grounds for which I have given permission.  I hope I have made it sufficiently clear that what has concerned me is that the Chikwamba point has never been properly considered in this case.  While it may face some difficulties, I am certainly not prepared to say that it has no realistic prospect of success.  I have explained how that brings in also the other grounds for which I have given permission.  The judge in the Upper Tribunal must reach his or her own decision on the Article 8 claim by reference to the relevant authorities.