JA (Ghana) v The Secretary of State for the Home Department [2015] EWCA Civ 1031

[2015] EWCA Civ 1031

Case No C5/2014/1763

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Upper Tribunal Immigration and Asylum Chamber

Upper Tribunal Judge McClure

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/10/2015

Before

LADY JUSTICE ARDEN

THE RT. HON. SIR ERNEST RYDER

SENIOR PRESIDENT OF TRIBUNALS

LORD JUSTICE BRIGGS

Between

JA (Ghana)Appellant

The Secretary of State for the Home DepartmentRespondent

Mr David Jones (instructed by Sutovic & Hartigan Solicitors) for Appellant

Mr Marcus Pilgerstorfer (instructed by Government Legal Department) for Respondent

Hearing Hearing date: 9 July 2015

Judgment

Senior President of Tribunals:

[1]JA (Ghana) is a 32 year old Ghanian national who was brought up by his grandparents in Ghana until he came to live in the United Kingdom to be with his parents at the age of 13. When the relationship between his parents broke down JA became homeless for a time and committed criminal offences. He has a criminal record of more than 20 offences which include robbery in 2002, possessing an offensive weapon in 2000 and 2006 and theft in 2008. JA has been in a stable relationship with a British national who is the mother of their child since 2003 and the child was born in 2006. JA was deported from the UK in 2009.

[2]The original deportation decision was made in 2006, four years after the robbery. In October 2006 an appeal was allowed against that decision in what was later characterised to be a last chance for JA. He subsequently went on to commit further offences for which he served a term of imprisonment. In 2008 a new decision was made to deport him. JA appealed but the appeal was unsuccessful. Ten months after the deportation order was signed, JA had still not been removed from the jurisdiction and he unsuccessfully applied to revoke the order. He was eventually deported on 9 November 2009.

[3]JA brought an out of country appeal against the refusal to revoke the deportation order which was dismissed in the FtT but later allowed in the UT when on 17 June 2011 Immigration Judge Holmes sitting as a deputy judge of the UT revoked the deportation order. Subsequently JA’s application for entry clearance as the unmarried partner of a person present and settled in the UK was refused by the Entry Clearance Officer on 23 April 2012. It is that decision that led to the appeal to the FtT which was dismissed on 15 January 2013 and the further appeal to the UT which was likewise dismissed by a determination made by deputy Upper Tribunal Judge McClure on 22 August 2013.

[4]It is the determination made by Judge McClure on 22 August 2013 that the appellant, JA, seeks to appeal to this court. He is seriously out of time. Grounds of appeal were first perfected and signed by counsel on 26 September 2013. They were considered by Upper Tribunal Judge Macleman on 9 October 2013 when permission was refused. In the notice of that decision which was sent to the appellant on 17 October 2013, the appellant was informed that he had 28 days to file an appellant's notice with this court in accordance with CPR PD 52D §3.3(2). Time expired on 18 November 2013 and the appellant filed his notice on 4 June 2014.

[5]This is a second appeal. Permission to appeal was adjourned to the full court by the single judge who identified the welfare of the child born in 2006 as the key and arguable issue in the appeal but subject to the merits of the delay question that had been identified.

[6]In fact, the key issue in the substantive appeal is whether the UT, having identified and corrected an error of law in the approach of the FtT, itself committed a further error of law in determining the application rather than remitting it to be heard with additional evidence, if appropriate, by the FtT. That in turn depends upon whether the issue of fact that had been identified was one that had itself been properly considered.

[7]It may be thought that a conclusive answer to the question in the appeal is provided by the terms of the Practice Statement promulgated by the Senior President of Tribunals on 25 September 2012 in respect of the IAC of the FtT and the UTIAC which at [7.1] states that where the UT finds that the decision by an inferior tribunal involves an error on a point of law it may set aside the decision and must either ‘remit the case to the FtT […] or proceed (in accordance with the relevant Practice Directions) to re-make the decision’. The ‘normal approach’ of the UT is described by the Senior President at [7.3] as being the latter course even if further fact finding is necessary. At [7.2] the Senior President sets out the practice more fully as follows:

“[7.2] The Upper Tribunal is likely on each occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:- (a) The effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or (b) The nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.”

[8]For the avoidance of doubt, it is not suggested by the appellant that the Practice Statement is unlawful. The appellant’s case is that the UT did not consider the criteria set out in the Practice Statement with the consequence that its decision is fundamentally flawed because the appellant did not have the (further) opportunity for an oral hearing which would have permitted the development of his

article 8 ECHR

case. As appears from the reasons I shall now describe, I have come to the conclusion that this appeal is misguided and that permission should be refused.

[9]The UT set aside the decision of the FtT in this application on a number of bases. It is not necessary to analyse the failings in the FtT save to identify the error which underpins this appeal, namely whether the article 8 circumstances relevant to the ECO’s decision have been heard and determined in a fair process. The relevant error of law that caused the UT to set aside the determination of the FtT was the failure of the FtT judge to treat the earlier determination by Judge Holmes as the starting point for consideration of the article 8 issues including whether the appellant’s partner and child could relocate to Ghana. Given that failure, it was inevitable that his determination would be overturned by the UT in accordance with the principles set out in Devaseelan (Second Appeals – ECHR - Extra-Territorial Effect) Sri Lanka*

[2002] UKAIT 702

. I need not dwell on this aspect of the litigation. Judge Holmes came to a factual conclusion relevant to the article 8 issues that were before the FtT in this application and it is plain that the FtT should have had regard to the same as its starting point.

[10]Having identified the error of law in the approach of the FtT, the procedural question for the UT was whether the effect of that error had been to deprive the appellant of an opportunity to put his case to the FtT and/or whether the nature and extent of any judicial fact finding that was necessary for the decision in the appeal to be re-made necessitated remittal to the FtT. The procedural question depended on the sufficiency of the facts found by Judge Holmes taken together with the evidence that was before the FtT for the purposes of the new article 8 consideration required for determination of the appeal against the entry clearance decision. It is important to understand that despite the strength of the submissions made by the appellant, no formal application was made to the UT to remit the matter to the FtT for further identified findings of fact to be made.

Judge Holmes decided the relevant issues of fact that were before him in the following terms:

“[40] […] As the report [of the independent social worker] explains there are considerable strains upon [the partner], and her ability to cope long term with the current situation is highly questionable. [41] It is accepted on behalf of the Appellant that either because of his detention, or because of his deportation, he has not been a member of the household in which [the child] has grown up for significant periods of time. Nevertheless it is plain from the report of [the ISW] that [the child’s] relationship with her father is a strong one, but there is in my judgment a genuine and strong bond with that idealised figure; her father. To be told that she could never see him again would undoubtedly affect her deeply. […] [43] […] There is no prospect of the family unit living together in Ghana…” [43] […] There is no prospect of the family unit living together in Ghana…”

[12]Judge Holmes was also forced to remark on the unacceptability of the child not having been told of her father’s removal from the jurisdiction some 19 months earlier with the consequence that she had no explanation of why she could not see him. That was something reported upon in some detail in the ISW’s report along with the adverse consequences to the child of separation from her father and the exacerbation of the same by the fact that she had not been told why. The ISW’s opinion reflected in Judge Holmes’ conclusion was that the situation was not sustainable.

[13]The appellant’s partner is a British citizen as is the child of their relationship. It is uncontroversial on the facts of this case that the right to respect for the family life of each member of the family is engaged and the best interests of the child are a primary (note not a paramount) consideration. It is equally uncontroversial that in the circumstances of this case, and given that the absence of any detailed consideration of article 8 issues in the ECO decision letter, there had to be a considered review by the tribunal of the substance of the appellant’s complaint about the article 8 circumstances. The question is whether such a procedure was provided in this case by the UT given the failings of the FtT.

[14]The appellant submits that the procedure adopted by the UT had the effect of denying the appellant and his family access to the court on a procedural ground with the consequence that the appellant is fixed with adverse findings of fact which will have an enduring effect. If and in so far as a procedural defect or irregularity is established, that is said to render the process unfair in article 6 and/or

article 8 ECHR

terms.

[15]The appellant also complains that the UT failed to appreciate the different context in which Judge Holmes was making his determination and accordingly the different perspective that applied to his article 8 consideration. It is entirely correct to identify the different circumstances in which the two article 8 questions fell to be considered. Judge Holmes was considering whether to revoke a deportation order whereas the decision under appeal in this application is whether to grant entry clearance. Those decisions are qualitatively different and it is common ground that the assessment of article 8 factors by the tribunal will not necessarily be the same. The question accordingly becomes whether the UT decision had regard to all of the relevant circumstances or whether, as is asserted by the appellant, the UT decision was unfair and/or in breach of article 8 in that it had the effect of treating Judge Holmes’ findings as “dispositive not only of the issue of revocation, but also the question of admission absent the manifestation of some material change of circumstance reducing the import of the same”.

[16]The Secretary of State submits that the procedure adopted by the UT was fair and that there was no misapprehension about the different nature of the decision making to be undertaken. It is submitted that in setting aside the erroneous approach of the FtT, the UT specifically identified that Judge Holme’s factual analysis was the starting point not the determinative end point of the task to be undertaken in respect of the article 8 circumstances relevant to the new entry clearance decision. She submits further that no procedural irregularity has been identified capable of amounting to a breach of articles 6 or 8 or an unfair hearing. The fact the child concerned will be affected, she submits, affords no lawful basis for interfering with the UT’s decision.

[17]The practical importance of this appeal is that the appellant seeks to adduce evidence about the impact of the continuing separation of the family. He submits that the classic range of factors that would be relevant to article 8, whether taken from a welfare checklist relevant to the welfare of a child or decided authority (see, for example: Huang v SSHD

[2007] UKHL 11

) require oral evidence to be heard to shed light on the circumstances at the time of the decision. He supports that submission by identifying written evidence in four documents that were before the FtT which it is said were not considered by the UT. In each case the evidence is of the child’s continuing distress or behavioural / psychological needs arising out of the separation from her father. The appellant in plain terms seeks to establish a procedural right to rely on evidence of circumstances at the time of the hearing on the basis, it is submitted, that to do so is compliant with Convention rights and the State’s obligations under the UN Convention on the Rights of the Child.

Discussion:

[18]I can deal with the article 6 and UN Convention questions quite shortly. They have not been argued before us from first principles and the implication for the domestic legislative scheme of the treaty obligations arising under the UN Convention have not been pursued before this court. The FtT embarked on a detailed examination of the case law that considers the obligations upon the State that flow from the UN Convention, but the appellant has not chosen to pursue any issue arising from that. Furthermore, this court would be hesitant to extend the applicability of an ECHR Convention right where there is already expressed doubt about the same. In Maaouia v France

[2001] EHRR 42

the Strasbourg court remarked as follows:

“The Court has not previously examined the issue of the applicability of Article 6§1 to procedures for the expulsion of aliens. The Commission has been called upon to do so, however, and has consistently expressed the opinion that the decision whether or not to authorize an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of Article 6§1 of the Convention…”

[19]The circumstances that are relevant to the article 8 issue are those in existence at the time the Entry Clearance Officer made his decision. By section 85(4) and (5) of the Nationality Immigration and Asylum Act 2002, read with section 85A(2), the statutory provisions in force at the time, the FtT hearing an appeal from that decision is to required consider the circumstances at the time of the decision made by the ECO. Changes of circumstance are not to be taken into account on the appeal. If there is a significant change of circumstance then a new application should be made (see, for example: SoSHD v SS (Congo), BM (Afghanistan), BB (Pakistan), AC (Canada) and KG (India)

[2015] EWCA Civ 387

[20]The appellant’s only answer to the terms of the statutory scheme and the decision in SS (Congo), which is binding on this court, is that this court has always entertained a degree of flexibility where, as is asserted here, the interests of a child are at stake and/or an error of law has led to there being only one level of judicial consideration of the article 8 issue and in the context that such consideration was in some sense incomplete because of the error of law (see, for example JD (Congo), WN (Gambia), ES (Iran), MR (Bangladesh) v SoSHD

[2012] EWCA Civ 327

at [31]:

“The extent to which it is possible to preserve the findings of fact of the FtT will be relevant. If the FtT has rejected an appellant’s case, but in doing so has failed to consider a particular piece of evidence, or has failed to give adequate reasons for reaching a particular conclusion adverse to the appellant, and on re-making the decision the UT reaches the same conclusion having considered the evidence that was omitted from the FtT’s consideration, or if the UT gives more detailed, and adequate reasons for reaching precisely the same conclusion as the FtT, we can see no reason for applying a less demanding standard. In such cases there will, in substance, have been two levels of judicial consideration and the appellant will have failed twice in the tribunal system. In other cases, the UT may have reversed the FtT’s decision upon the basis of a wholly new legal point which was not argued before the FtT, in respect of which there will have been only one level of judicial consideration.”

[21]I firmly agree that care must be taken to ascertain whether a finding of fact or a key element of the reasoning that underpins a first instance determination has been scrutinised by an appellate tribunal. That is relevant to the way the appeals test is to be applied in this court. Although it is submitted that in this case there has been only one judicial determination of the article 8 facts, namely that undertaken by Judge Holmes, that presents an incomplete picture of the findings and evidence available to the UT. The submission avoids the key question which is whether Judge Holmes’ determination of the facts, together with such other evidence as was presented to the FtT, was sufficient for the purposes of this application ie whether anything relevant to the article 8 circumstances at the time of the ECO decision has been inadvertently omitted or precluded by a decision or process such that a new error of law has been committed.

[22]The appellant appears to suggest by his submissions that the legislative scheme would be incompatible with the article 8 rights that are engaged unless this court and the UT were required to engage in a broad enquiry into article 8 circumstances at each hearing such that an oral hearing is necessitated allowing for the development of collateral issues beyond those relevant to circumstances existing at the time of the ECO’s decision. The appellant has not made a claim for a declaration of incompatibility in respect of the statutory provisions that I have described and made no serious attempt to pursue that suggestion. In the context of the statutory scheme, I cannot accept the submission that the tribunal or this court should permit evidence to be adduced that is only relevant to the circumstances after the ECO decision.

[23]Turning then to the question of how the article 8 facts in issue were considered in the UT. The appellant cannot complain about the effect of the UT decision in the sense that it restored the favourable findings of fact made by Judge Holmes. Furthermore, the appellant was not denied the opportunity of adducing additional evidence on the article 8 issue before the FtT and there has been no formal application before the UT (or this court) for permission to adduce additional evidence. Indeed, by a letter to the tribunal dated 1 March 2013, after permission to appeal from the FtT had been granted, the appellant’s solicitor confirmed that he wished “to rely solely on the grounds for seeking permission to appeal and does not have any new evidence to submit at this time”.

[24]Judge McClure took the findings of Judge Holmes as his starting point and held on the evidence available to him that there “is a genuine and real relationship between the appellant and his partner and child such as would constitute family life”. He decided that “the appellant’s partner and child cannot be expected to live in Ghana” and he found on all the evidence that “the [ECO] decision does interfere in the family life of the appellant, his partner and child”. He noted that there was evidence from a “proper assessment […] of the appellant’s wider family, his parents and siblings but such wider family is only a background factor in assessing Article 8”.

[25]It should be noted that the FtT had also found, contrary to the respondent’s case, that there was a subsisting relationship between the appellant, his partner and child, that the relationship between father and child was close despite his imprisonment and the fact that he was not the child’s primary carer and that there was ‘family life’. It is perhaps important to note that in the context of the error of law made by the FtT, that judge had held that “there is no evidence to make a finding that the absence of the appellant will have an adverse interest on the development of the child in question”. The UT did not rely on that conclusion which, in any event, was also flawed, being contrary to the conclusion of Judge Holmes.

[26]Given the conclusions reached by Judge Holmes and the evidence that was before the FtT, the factual conclusions of the UT relevant to article 8 cannot be said to be plainly wrong. Quite the contrary, no-one now says that they are wrong. If I have any criticism of the UT it is that the judge could have re-iterated the evidence consistent with the conclusion reached by Judge Holmes namely that the child was deeply and adversely affected by the separation from her father. Given the emphasis that the UT judge placed upon the error made by the FtT and the starting point provided by Judge Holmes, it cannot be said that this vitiates his decision. The judge then went on to balance those conclusions with the other article 8 factors that were in play, as he was required to do, to come to a conclusion that the decision to refuse entry clearance was a proportionate interference with the article 8 rights that were engaged. I ought to emphasise that it is not the balancing exercise conducted by the judge that is in issue, but rather the manner in which he came to his article 8 conclusions.

[27]Despite that context, the appellant submits that this court should scrutinise material which it is asserted is relevant to the ECO decision and which on remission an FtT (or for that matter the UT making its own findings of fact) should have considered. We have done so de bene esse while making it clear that this is not the manner in which such an allegedly important issue should be pursued. An application to adduce additional evidence should have been made with a witness statement setting out the asserted relevance of the material and the basis upon which it is said that it is appropriate for this court to admit the same. I have already referred to the four documents that were before the FtT. There was also a letter from the appellant saying that he is a changed man and a statement from his partner which goes into some detail about the continuing impact on both the child and herself. Although she says in terms that “everything still remains the same”, in fairness to her and to the appellant her evidence is of the impact after the ECO decision.

[28]For the reasons that I have already set out, in so far as this evidence goes to the circumstances after the ECO’s decision, it cannot be admitted. In so far as it is descriptive of the circumstances at the time the ECO decision was taken, it takes the court no further than the material that was already admitted before the UT and found as a fact by Judge Holmes. In my judgment, therefore, the UT was correct in its approach to the evidence that was before it. The conclusion that the application could be dealt with on the evidence that was already before the UT cannot be faulted. I would not admit any of the additional evidence that was put before this court.

[29]There was a separate issue which is not relevant to the decision of this court but which ought to be stated for completeness. The appellant has yet to comply with the immigration rules which require him to demonstrate his competence in the English language and to comply with the requirement for a TB innoculation.

[30]The appellant’s submission that the UT misunderstood the different contexts in which Judge Holmes and the UT were required to consider article 8 issues is simply wrong. Judge McClure undertook a careful and full analysis of the different functions and principles that arose on the two applications. He devoted a complete section of his judgment to each application. Not only did he overtly analyse the different contexts of the decisions under appeal, he carefully identified what were findings of fact in the article 8 context made by Judge Holmes and what was a public interest balance undertaken by him which although it necessarily involved the appellant, his partner and child did not have the consequence of determining a definitive article 8 conclusion that bound the ECO or the FtT / UT subsequently making the different decision about entry clearance.

[31]I am troubled by the submission that the UT judge was required to consider the criteria in [7.2) of the Practice Statement and that by failing to do so he was guilty of a procedural irregularity sufficient to amount to an error of law ie the process amounted to an unfair hearing. That is a bold submission when shorn of its substantive context. Where a tribunal is given a procedural discretion then one expects there to be a reasoned decision about the use of that discretion, whether that is in response to an application made to the tribunal or as respects a choice that has to be made between, say, two available procedural approaches, one of which may be more adverse than the other to one or other of the parties. That was not the circumstance here. The UT judge was following a Practice Statement that set out the normal approach of the tribunal. As a specialist judge he can be taken to know what that approach is. The need for overt reference to the Practice Statement and his reasons for taking the normal approach can usually be taken as read. Further reference to the Practice Statement would ordinarily only arise where the judge chooses to take a procedural approach that is not the normal approach: that is a circumstance that would need to be reasoned.

[32]Furthermore, the jurisdiction of the FtTIAC and the UTIAC is one where it is and should be a commonplace for a decision to be remade by the UT where there has been a rectifiable error made by the FtT. That is the purpose of that part of the Practice Statement to which I have referred. Other jurisdictions have different approaches for good legal policy reasons but these are not to be imported into the specialist procedures designed for immigration and asylum (see, for example the obligation to remit unless there can be only one correct answer in the Employment Appeal Tribunal: Burrell v Micheldever Tyre Co Ltd

[2014] IRLR 630

and the more nuanced approach in family appeals: Re B [2014] EWCA Civ).

[33]The consequence of the use of the normal procedural approach is a separate question. It is submitted that a further oral hearing on the article 8 issue was necessary: the absence of the same being characterised as an unfair process and a breach of the procedural component of article 8. I do not accept the broad generality of this submission. It may be that on the facts of a particular application, a tribunal is obliged to hear oral evidence to determine issues that depend on the credibility and/or reliability of the witnesses whose evidence is relevant. That is commonplace and [7.2] of the Practice Statement is sufficient to encompass such circumstances. That does not mean that all article 8 issues require oral evidence to be heard for the tribunal to exercise even the most intense level of scrutiny.

[34]A distinction should be drawn between credibility, reliability, essential context on the one hand (and I do not intend that to be an exclusive list of factors) and the inevitable emotional element of compassion that article 8 questions raise, on the other. The personal tragedy that arises in this case does not necessitate either a further oral hearing because of that fact and/or because of the nature of the application itself. The appellant would have to go further in asserting a case dependent on a factor such as credibility, reliability and/or context that necessitates an oral hearing on the alleged facts of the case. It is plain from the context of the findings made by Judge Holmes and the evidence that was available to the FtT and the UT, that this was not a case that required remission nor was it a case that involved any additional evidence other than that which had already been heard and was available in documentary form.

[35]Although I accept the appellant’s point in principle about the need to scrutinise fact finding that has only occurred once, as I have already remarked that misses the point. There was nothing inadequate about the process or the finding itself. Given that conclusion, and for the reasons I have explained, there is no other important point of principle or compelling reason in this application that requires this court to hear the appeal. The UT was right to correct the error of the FtT and although the welfare of a child might in itself be a compelling reason to hear a second appeal, that is not an inevitability and there is no issue arising out of the child’s welfare in this application that is potentially determinative of any of the grounds of appeal.

[36]For these reasons, I have concluded that there are no realistic prospects of success in the appeal to this court and I would refuse permission and dismiss the appeal. That is a sufficient determination of the issues in the application but given the time and resources expended on the delay question, it is important I set out my conclusions and the reasons for the same.

Delay:

[37]In the absence of relief, the appellant is unable to appeal and having regard to the finality of that determination, this court must consider the evidence submitted in support of an extension of time by reference to CPR r3.9(1) and CPR r1.1(2). The checklist of factors is deliberately refined in the amended rule but the principle of and reason for their consistent application as described by Brooke LJ in Sayers v Clarke Walker

[2002] 1 WLR 3095

at [21] remains the same.

[38]On the question of delay, no apparent issue is taken with the rules and their application. Accordingly, I can take these shortly. In accordance with CPR r52.1(4) and PD 52D §3.3(2) the appellant had 28 days from the UT’s decision being given on permission to appeal from its own determination to file a notice of appeal with this court. In the absence of any evidence to the contrary, the UT’s notice of refusal of permission is taken to be received on the second day after posting by first class post in accordance with CPR r6.14. That was on 21 October 2013. Accordingly, time expired to file a notice of appeal with this court on 18 November 2013.

[39]In the absence of any successful application within time to extend time for the filing of the notice of appeal, the appellant is required to obtain relief against the sanction that is implicit in being out of time. Given that in accordance with CPR r52.6 the parties may not agree to an extension of time, the matter must be dealt with on application to the court. As the appellant concedes, that involves a consideration of the overriding objective in CPR r1.1 and relief from sanctions in accordance with rule 3.9(1). The approach to such an application is now set out in the decision of this court in Denton v TH White Ltd

[2014] EWCA Civ 906

[2014] 1 WLR 3926

, for example at [21] to [36], inclusive.

[40]The first stage is to identify and assess the seriousness and significance of the failure to comply with the rule, practice direction or court order that engages rule 3.9(1) ie the breach in respect of which relief is sought rather than other failures. The second is to consider why the breach occurred and the third is to consider all the circumstances of the case so as to enable the court to deal justly with the application. I acknowledge the submission of the appellants, reflected in the Denton judgments at [21], to the effect that the third stage is not an exceptionality test but rather an enquiry into all the circumstances so as to consider the consequences of the breach and whether those consequences are disproportionate despite the fact that the breach may have had little practical effect on the course of the litigation.

[41]It is not necessary to set out in extenso the principles in Denton which are now well known but it perhaps prudent to reiterate the manner of their application:

“[35] [The court] will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. Where there is good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted. [36] But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance.”

[42]The significance of the merits of the substantive appeal to the circumstances of the case was considered in R (On the application of Hysaj) v Secretary of State for the Home Department

[2014] EWCA Civ 1633

. In essence, although the merits will not normally be a decisive factor in respect of the third stage, the importance of the issues to the parties and the prejudice to the respondent will be of particular relevance. Without prejudice to the generality of the decision in that case, the following paragraphs of the judgment are instructive:

“[46] If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties’ incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases. […] [53] The final stage of the process is to consider all the circumstances of the case. As I have already mentioned, this appeal raises a point of considerable importance both to the parties and those in similar positions and to the wider public and it is one which in the public interest needs to be decided as soon as is reasonably possible. That is a factor that argues in favour of granting relief, but I do not think that the merits themselves are sufficiently clear in this case for the court to take them into account one way or the other. Of critical importance, in my view, is the fact that the delay in filing a notice of appeal has not prejudiced the respondent, who clearly understood that the effect of the agreed order was to stop time running. In all the circumstances I have no doubt that an extension of time should be granted. […] [56] Nonetheless, it is necessary to consider all the circumstances of the case before reaching a final decision. In the light of the delay that has already occurred and the various efforts that have been made by Mr Bensi to avoid complying with the judge’s order, I consider that the respondent would suffer prejudice if the court were to grant an extension of time to enable him to appeal against that order.”

[43]In applying the principles from the decided authorities to the facts of this case, the appellant concedes that the delay in lodging the notice of appeal was significant for the purposes of stage one.

[44]The reason for the delay is said to be “difficulties associated with securing public funds” in the context of “the Appellant and his family’s limited financial resources” and the fact that the litigation is said to be of such complexity that “neither the Appellant, nor his wife, could have been expected to advance their case as litigants in person”. It is also submitted that it would have been unreasonable for the appellant’s solicitors to have acted for the appellant pro bono beyond the steps that they in fact took and, in particular, in the circumstance that the appellant is overseas ie this is an out of country appeal, the steps associated with the filing of an appeal with this court would have involved not inconsiderable additional costs beyond lodging the appeal with a fee remission. I shall return to these submissions in due course.

[45]The third stage is said to be informed by the following circumstances: the commitment and expedition, absent public funding, of the appellant’s solicitor’s actions including at all previous stages of the litigation, the appellant’s family’s own attempts to raise funding for the appeal, the merits of the substantive appeal, the importance of the application to the appellant and his family and the article 8 factors relating to the family and, it is submitted, compellingly his 9 year old child. I shall likewise return to these submissions as part of my reasoning in due course.

[46]It is submitted that the respondent’s preferred solution to the appellant’s funding dilemma of an application in time with fee remission and an application for a stay pending public funding would not have led to any shorter delay. Accordingly, it is said, the delay that has in fact occurred has had no significant or serious effect on the course of the litigation. As to prejudice, it is submitted that no particular prejudice is identified by the Secretary of State. The appellant is out of country and nothing about the respondent’s ability to respond to the litigation is apparent. Furthermore, the maintenance of effective immigration control is mitigated by the appellant being out of country and the finality of litigation is to be considered in the context of the likelihood that a further ie new application will be issued. Such costs implications that may survive the decision of this court to direct a rolled-up hearing are submitted to be minimal and to be the consequence of the respondent electing to take the delay point.

[47]I have already set out how the test that the court has described in Denton is to be applied. Dealing with each of the factors in turn by reference to the substantive discussion on the appeal and the statement of evidence of the appellant’s solicitor in support of the application to extend time, I have come to the following conclusions:a. The appellant has been consistently represented by the same solicitor since October 2009. His circumstances and those of his partner and child in the United Kingdom are well known to his representatives.

b. Sufficient material existed for the appellant’s solicitor and counsel to come to the conclusion in October 2013 that there were merits in an appeal. Very full grounds of appeal were drafted by counsel for the application for permission to appeal to be considered by the UT. A comparison of that document with the grounds and skeleton argument drafted for this court does not establish that any further significant work was required for the same grounds and submissions to be used in this court. Given the extensive nature of the narrative in the grounds filed with the UT (which is to be discouraged), there was little that needed to be done for a skeleton argument to be perfected for use in this court.

c. I accept that funding and the funding dilemma, which was the background context to applications for exceptional funding at the time, presented a natural barrier to ancillary work that can be expected of a solicitor who is at the relevant time acting pro bono. I would not want there to be any discouragement to those who selflessly and professionally agree to undertake work for those who would otherwise be litigants in person. Without further argument from a professional body and for the purposes of this judgment, I am prepared to accept that it was not reasonable to expect the appellant’s solicitors to do more than file the grounds as drafted and apply for fee remission and a stay.

d. I do not accept that the delay that occurred in giving advice about fee remission and applying for it was a necessary component of acting pro bono. On the facts of this case, the same activity that was engaged in by the appellant’s solicitors pro bono in May 2014 could have been undertaken pro bono in October 2013. The risk of obtaining only a partial fee remission on its face suggests that if that was indeed a risk, the existence of some alternative funding would have permitted some steps to be taken at least up to the point that a stay could have been applied for.

e. The availability of public funding and the changes to the public funding regime that was applicable are not a basis for delay that can be relied upon by the appellant without more. The changes pre-dated the determination that is the subject of the appeal and the changes applied to everyone. It is not a (collectively) proportionate use of the court’s resources for there to be multiple applications for extensions of time as a relief from sanctions from everyone affected by public funding changes. Nor is such an approach coincident with the principle of finality of litigation. A more appropriate and (individually) proportionate course on the facts of this case would have been to comply with the rules in so far as that was possible and apply for a stay to prevent sanctions taking effect. That is illustrated in this case by the fact that the delay waiting for exceptional funding to be secured did not in fact achieve its objective.

f. The substance of the appeal will have a continuing impact on the family life of all involved and in particular the child. From that perspective any delay is harmful to all involved. In an appropriate case where a child’s interests are central to the decision under appeal, it might be appropriate to obtain a direction for expedition from this court. The child’s interests in this case are not sufficient in themselves for permission to be granted for a second appeal.

g. There is no point of general public interest in this appeal and although the article 8 issues are of great significance to the appellant and his family, they do not of themselves raise issues sufficient to lead to permission being given in this court. The weakness of the appeal is in itself an important relevant factor.

[48]Given these conclusions, although the prejudice to the respondent can only be said to be general rather than particular to this application, ie in the maintenance of effective immigration control, nevertheless, it would not have been right to extend time and give relief against sanctions in this application. Accordingly, I would refuse the application to extend time.

Lord Justice Briggs:

[49]I agree.

Lady Justice Arden:

[50]I also agree.