Case No: C2/2015/1720

Neutral Citation Number: [2018] EWCA Civ 411
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Gill
JR/7585/2014 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/03/2018
Before:

THE SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE LEGGATT 

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Between:

	Kaur & Ors	Appellants	
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	The Secretary of State for the Home Department	Respondent	

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Mr Anas A Khan & Mr Russell Wilcox (instructed by Goodfellows Solicitors) for the Appellants
Mr Christopher Staker (instructed by Government Legal Department) for the Respondent

Hearing date: 8 February 2018

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Judgment
Sir Ernest Ryder, Senior President: 
Introduction:
1.	This is an appeal against the decision of the Upper Tribunal [‘UT’] to refuse permission to apply for judicial review of the decisions of the Secretary of State made on 20 March 2014 which refused the appellants’ applications for leave to remain in the United Kingdom.  The appellants are the wife of a British citizen, Mr Singh, and her two dependent children.
2.	The appellants arrived in the UK on 16 June 2008 with leave to enter as visitors until 10 December 2008.  They remain in the UK and have accordingly overstayed since their leave expired.  They came to the UK in order to join Mr Singh who is their husband and father, respectively.  Mr. Singh arrived in the UK in 2003 and claimed asylum.   At that time his asylum claim was refused.
3.	On 29 May 2012, the appellants submitted applications for leave to remain.  These applications were refused by the Secretary of State on 17 July 2013.  On 13 September 2013 the appellants issued judicial review proceedings challenging the 17 July 2013 refusals.  Under the terms of a consent order, the judicial review proceedings were withdrawn on the basis that the Secretary of State would reconsider her 17 July 2013 decision.
4.	On 20 March 2014 the Secretary of State undertook her reconsideration and made three decisions refusing the applications of each of the appellants.  These decisions are the subject of the present judicial review claim with which this court is concerned.
5.	At the date of the decision on 17 July 2013 Mr. Singh had indefinite leave to remain [‘ILR’], having been granted ILR in 2010 under the Secretary of State’s legacy programme.  However, by the date of the decisions on 20 March 2014, he had become naturalised as a British citizen.
6.	The appellants filed the present judicial review claim on 13 June 2014.  Permission to apply for judicial review was refused on the papers by Upper Tribunal Judge Macleman.  On 18 May 2015 Upper Tribunal Judge Gill refused the renewed oral application for permission to bring judicial review proceedings and to amend the grounds.  That decision is challenged in this appeal.
7.	The reasons for the decision of the UT are contained in a written decision notice and a slightly enlarged judgment.  The UT decided that the submissions made on behalf of the appellants amounted to an application in the face of the tribunal to abandon the original judicial review grounds and substitute new grounds.  They were made without notice and very late.  The judge held that they could not be said to be implicit in the original grounds.  The UT refused to allow the grounds to be substituted, refused an application for an adjournment and refused to grant permission for the claims to proceed.
8.	The UT concluded that the appellants’ submission that the Secretary of State had made an error in the children’s decisions was wrong.  The error of fact was said to be that the Secretary of State had proceeded on the erroneous basis that both of the children’s parents’ applications had been refused.  The UT held that it was plain, when the decision letters are read together, that despite the typographical errors identified, the Secretary of State was aware that the applications were made on the basis that the father was a British citizen and the mother was seeking limited leave to remain as a parent of the children and the partner of Mr Singh who is the children’s father.
9.	The UT rejected the appellants’ interpretation of Appendix FM to the Immigration Rules and held that the interpretation contended for would amount to a claim that Appendix FM was unlawful, a claim that can only be pursued in the High Court rather than the UT.  In any event, the UT held that the interpretation contended for, which raised the question whether  British nationals are being treated less favourably under the Immigration Rules than those with indefinite leave or limited leave to remain, was an argument without sufficient merit. 
Grounds of appeal:
10.	The appellant has four grounds of appeal:
 i)  As a matter of law, the Upper Tribunal was wrong to refuse to allow the additional ground(s) and wrong to refuse permission;
ii) The Secretary of State’s decisions were based on the mistaken basis that both of the parents’ applications had been refused under Appendix FM;
iii) If the Secretary of State made a factual error in the challenged decisions relating to the children, then there was inevitably an error in the decision relating to their mother; 
iv)	On a proper interpretation of Appendix FM, the Secretary of State was bound to allow the applications of the children under Appendix FM.
Discussion:
11.	It is convenient to deal with grounds 2 and 3 very shortly and in the manner they have been addressed before this court.  It is right to say that in each of the children’s decision letters there are the following words:
“In view of the fact that your parents’ applications under Appendix FM have been refused the Secretary of State is not satisfied that you are able to meet E-LTRC 1.6”
12.	If that was intended to be a statement of fact, it was incorrect.  If it was a typographical error, it was compounded by the words used in the sentence and should have been corrected.  The UT undertook the exercise of examining all three decision letters which were written at the same time by the same decision maker and concluded that taken together it is plain that there was no error in fact.  In other words, the Secretary of State was well aware that the appellants’ applications were in the nature of a family application where one parent was already settled in the UK and a British citizen and made her decisions on that basis.  In support of these two grounds, no other aspect of the decision letters or the UT’s decision is identified by the appellants as being wrong.  
13.	Having had the opportunity to read the letters I firmly agree that there can be and was no misapprehension as to the true facts.  Ground 2 has no prospects of success because the UT was demonstrably right.  This court has not been pressed to consider any other basis for ground 3.  It is fairly acknowledged on behalf of the appellants that if the factual issue is resolved in the way that I describe it, then ground 3 is unsustainable.
14.	It is not necessary to examine the merits of the Secretary of State’s decisions to refuse each of the appellants leave to remain under the Immigration Rules or outside the Rules.  That aspect of the decision is not an issue in this appeal.  It needs to be said, however, that the likely impact on the family is plain and that underscored the application for judicial review.
15.	Grounds 1 and 4 are said to concern the jurisdiction of the UT to consider the legality of Appendix FM to the Immigration Rules.  On closer examination, there is no dispute about the jurisdiction of the UT to hear an application for permission to bring a judicial review claim, which this was.  In summary that is because it is common ground that:
i)	The judicial review jurisdiction of the UT is conferred by sections 15 and 18 of the Tribunals, Courts and Enforcement Act 2007.  It is only if the four conditions of section 18(2) of that Act are met that the UT has jurisdiction, otherwise by section 18(3) the UT must transfer the application to the High Court;
ii)	In accordance with section 18(6) of that Act, one of the conditions to be met is that the judicial review application must fall within a class specified in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.  The relevant directions transferring immigration and asylum judicial review proceedings to the UT (Immigration and Asylum Chamber) from the High Court in England and Wales were made on 21 August and 24 October 2013;
iii)	Paragraph 3(i) of the first direction provides that the judicial review jurisdiction of the UT does not include any application that challenges the validity ie the legality of the Immigration Rules;
iv)	Permission decisions in judicial review applications in England and Wales are not excluded because they fall within the class and are not excluded by the direction.
16.	The short answer to ground 4 of the grounds of appeal is that the question of the alleged unlawfulness of the Immigration Rules and hence the jurisdiction of the Upper Tribunal was not the determinative issue in the decision to refuse permission.  The first question before that tribunal was whether the grounds of claim could be amended to include the new basis for the claim.  The UT decided that permission to amend the claim should be refused having regard to the overriding objective in the Tribunal Procedure (Upper Tribunal) Rules 2008, the delay of 14 months between the decision complained of and the argument being raised and the fact that it was not raised in advance (as it could and should have been) but in a skeleton argument delivered on the morning of the UT hearing.  The UT considered whether the new basis of the claim could be said to be contemplated within that pleaded and rightly decided that it could not. Furthermore, the new grounds could have been raised at the same time as the original grounds.
17.	The reasoning for the decision is unimpeachable.  It was wholly unacceptable for the appellants to seek to substitute new grounds at the time they did and in the manner that they attempted.  No reasons were proffered and as an exercise in case management the decision of the UT is one with which this court should not interfere. There is not the first scintilla of a submission that has any prospect of success in seeking to establish that the decision was wrong with the consequence that ground 1 of the appeal is without merit.
18.	Given that the jurisdiction of the UT was neither a determinative nor relevant consideration, that exhausts the grounds of appeal.  In deference to the fact that the parties and the UT judge considered what may be the position if the UT was in error in making its decision to refuse to allow new grounds to be substituted, I shall consider the proposition that the UT should have either granted permission and remitted the claim to the High Court or remitted the permission hearing to the High Court for determination.  Given the original jurisdiction of the UT to decide the permission question, the only basis on which this aspect of the appeal could be pursued is that there is an arguable case that a ground for seeking judicial review exists i.e. an arguable ground which has a realistic prospect of success and the UT was wrong not to have identified the same. 
19.	The claim which the appellants sought to substitute was that the Immigration Rules and in particular Appendix FM discriminate against British citizens and accordingly against the appellants as the family of a British citizen.  For the reasons which follow, I do not agree.  
20.	The relevant part of Appendix FM is as follows:
“E-LTRC.1.6. One of the applicant’s parents (referred to in this section as the “applicant’s parent”) must be in the UK and have leave to enter or remain or indefinite leave to remain, or is at the same time being granted leave to remain or indefinite leave to remain, under this Appendix (except as an adult dependent relative), and 
(a)	The applicant’s parent’s partner under Appendix FM is also a parent of the applicant; or
(b)	The applicant’s parent  has had and continues to have sole responsibility for the child’s upbringing or the applicant normally lives with this parent and not their other parent; or
(c)	There are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.”
21.	The submission is that Appendix FM needs to be read so that the parent of children who is a British national is placed in the same position as a parent with ILR or limited leave to remain. The appellants submit that this is necessary because a proper reading of Appendix FM is that the applicant’s parent is the children’s father and the applicant’s parent’s partner is the children’s mother who is herself an applicant for leave to remain.  If the appellants are correct, then it is plain that a parent who is a British citizen would be in a disadvantageous position by comparison with a similar parent who only has ILR or limited leave to remain. 
22.	Given that the Secretary of State does not accept that the relevant part of Appendix FM should be read to include the greater in the lesser i.e. British citizenship within the description of ILR, the appellants submit that, as drafted, the Immigration Rules produce an illegality because they discriminate against children one of whose parents is a British citizen.  That would be contrary to the sense and purpose of the Rules and the legislative framework within which the Rules operate.
23.	I do not agree because when the rules are applied to the facts of this case, the applicant’s parent for the purposes of the Rule is the mother and the applicant’s parent’s partner is the father. The children were claiming family life as children of an applicant who was herself seeking leave to remain where her spouse is a British citizen: that is the route that this part of the Rules provides for.  Accordingly, the children’s applications fell to be considered under sub-paragraph (a) of the Rule, no other sub-paragraph being relevant.  No reading down or interpretation of the Rule is required for it to be applicable.  The illegality contended for by the appellants does not arise save in their own misunderstanding of the construction of the Rule.  
24.	There is no reason to read the Rule as if the applicant’s parent has to be the children’s father so that his nationality does not qualify him for inclusion in the Rule.  In support of what I consider to be the correct reading of the Rules, the effect of R-LTRC.1.1(c)(iii) and E-LTRC.1.6(a) is that one of the child’s parents must have been granted leave to remain under Appendix FM  and the other parent must  either be a British citizen or settled in the UK.  This conclusion is reached because the partner route under Appendix FM requires the partner to be such under E-LTRP.1.2 and the parent route under Appendix FM requires the applicant to either have sole responsibility for the child or to be the parent with whom the child lives.  The grant of leave to a child is accordingly derived from the grant of leave to a parent which is in turn dependent on the status of the partner.  
25.	The partner under Appendix FM is a reference to the person on whose status all of the claims are derived: the person who is present and settled in the UK: in this case the children’s father who has British citizenship.  That is because partner is defined in that part of the Rules (the partner route in E-LTRP.1.2) which deals with partners.  The applicant’s parent is accordingly the mother of the children on whose status the children depend.  If, as in this case, for reasons that are not the object of this appeal, the mother fails to obtain leave to remain then she does not satisfy the requirement in E-LTRC.1.6 and the children do not obtain derived rights under Appendix FM despite the fact that their father satisfies the Rules by his British citizenship.
26.	Given that there is no need to read the Rules in the way contended for by the appellants, and every good reason to read them as described above, it is readily apparent why the UT concluded there was no merit in the new grounds being advanced.  I would dismiss this appeal with the consequence that the decision of the UT stands.
Lord Justice Leggatt:
27.	I agree.