CN (Malawi) & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 526

Case No C5/2015/0978

[2016] EWCA Civ 526

IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION)

ON APPEAL FROM THE Upper Tribunal

(Immigration and Asylum Chamber)

Venue Royal Courts of Justice

Strand

London, WC2A 2LL

Date Tuesday, 15 March 2016

Before

LORD JUSTICE McCOMBE

Between

CN (MALAWI) & ORSApplicant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

DAR Transcript of

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Official Shorthand Writers to the Court

Ms Victoria Laughton (instructed by Lighthouse Solicitors) appeared for Applicant

for The Respondent did not appear and was not represented

Judgment

LORD JUSTICE McCOMBE:

[1]I have considered in this case with the help of Ms Laughton whether or not it is appropriate for the anonymity of the applicants to remain in place. It seems clear that is should be in view of the continuing involvement of the third applicant, who is a minor. So the case will continue to be entitled CN (Malawi) & Ors v SSHD.

[2]This is a renewed application for permission to appeal from a decision of the Upper Tribunal (Immigration & Asylum Chamber) in the person of Deputy Upper Tribunal Judge Perks of 20 November 2014, promulgated on 30 December of that year. The Upper Tribunal dismissed an appeal from a decision of the First-tier Tribunal, Judge Gareth Jones QC, of 2 June 2014 promulgated on the same day.

[3]Those decisions dismissed each of the applicants’ appeals against decisions of the respondent Secretary of State to refuse their applications to remain in the United Kingdom. Permission to appeal to this court was initially refused by Upper Tribunal Judge Kebede in a decision of 18 February 2015, sent out to the applicants on 24 February 2015. Permission to appeal was again refused by Lloyd Jones LJ on a paper consideration of 29 July of last year.

[4]The applicants are citizens of Malawi. The first and second applicants are respectively the father and mother of the third applicant. The first applicant entered the United Kingdom on 15 September 2007 as a student with leave to enter to 31 January 2009. He left the country and returned on 20 September 2009 with entry clearance again as a student. He was granted a number of extensions; his last leave to remain ended on 13 January 2014.

[5]The second applicant last entered the country on 29 November 2009 and remained as the first applicant’s dependent spouse. She had previously been in the United Kingdom from 7 November 2007 until a date sometime in about January 2009. The third named applicant, most important for the present consideration, was born in the United Kingdom on 5 December and is therefore now aged seven. She left the country with her parents but returned with entry clearance on 29 November 2009.

[6]The third applicant has autistic spectrum disorder and was found by the First-tier Tribunal judge to have significant special educational needs. She has most recently attended a special school for children with such problems and, from such evidence as has been seen, has been making good progress there.

[7]On 14 December 2013 the applicants applied for leave to remain, relying on a number of grounds, and in letters dated 4 February 2014 the respondent Secretary of State refused all three applicants’ applications for leave to remain.

[8]The only ground that remains relevant for present purposes is the appropriateness of the potential return of the third applicant, the daughter, to Malawi, given that it would involve disruption and potential impairment of her progress at her highly satisfactory school and where circumstances for children with her condition are, as might be expected, somewhat different from here.

[9]It was accepted all along before the First-tier Tribunal that none of the applicants came within the relevant paragraph of the Immigration Rules and therefore the case was argued solely on the basis of

article 8 of the European Convention on Human Rights

and only on the basis of private life.

[10]The applicants appealed to the First-tier Tribunal. The tribunal heard the appeals on 27 May 2014. At the outset of that hearing Mr Laughton (the applicants’ counsel at each stage of the proceedings, including before me today) applied for an adjournment for two reasons. First, she pointed out to the judge that the appeal was being heard during the school half term, which meant that the third applicant, the daughter, was present in the building and would have to remain outside the hearing room with one or other of the parents while the hearing continued; and, secondly, to give the applicants time to obtain up-to-date medical evidence relating to her condition. It the last aspect of the case to which Ms Laughton has paid particular attention in her submissions this morning.

[11]When considering the application for an adjournment, the First-tier judge referred to cases decided under the Civil Procedure Rules concerning relief from sanctions. He stated that he kept very much in mind that those cases were of no direct application but considered that they demonstrated the need for parties to take the ample opportunities afforded within the tribunal’s procedures to prepare their case in order for the hearing.

[12]He stated that the temporary absence from the tribunal hearing of the first or second applicant would not prevent the appeal from being justly determined. He considered that the prospect of the medical evidence was speculative and he therefore refused the adjournment application. The judge went on to consider the substance of the case and found that the “special educational needs” provision was available in Malawi in the private rather than public sector; he noted that the first and second applicants had not argued before him that they would be unable to pay for such special education and considered on the evidence, as regards their position in Malawian society in the past, that it was probable that they would be able to afford it. He stated that no evidence had been adduced relating to the quality of special educational needs provision in Malawi.

[13]Later in the decision he noted that the applicants had adduced no evidence that any variation or interruption to the third applicant’s education would cause real and lasting prejudice to her. Having regard to these factors, and despite the considerable importance accorded to the third applicant’s interests and protection by section 55 of the Borders, Citizen and Immigration Act 2009, to which he expressly referred, the judge considered that the respondent’s decision was, in all proportionate. Therefore the judge proceeded to dismiss the applicants’ appeals in his decision of 2 June 2014.

[14]The applicants’ applied for permission to appeal to the Upper Tribunal, which was refused by First-tier Tribunal Judge Mark Davies in a decision of 30 June 2014, but permission was subsequently granted by an Upper Tribunal judge, Judge Lane, in a decision of 1 October of that year. The appeals were duly heard by the Upper Tribunal on 14 November 2014.

[15]In his decision of 24 November Deputy Upper Tribunal Judge Perks dismissed the applicants’ appeals. He agreed that the First-tier’s references to the Civil Procedure Rules and the cases decided under themwere inappropriate, but concluded that the judge had been entitled to refuse the application for the adjournment for the reasons that were given. The Upper Tribunal judge considered that it was clear that the First-tier judge had had proper regard to the third applicant’s significant problems and to the family’s overall history and he concluded that the finding of the removal was proportionate, in all the circumstances, was one that was properly open to the First-tier judge, and he accordingly dismissed the appeal.

[16]In the present application the applicants, through Ms Laughton, advance four proposed grounds of appeal. First, it is argued that, having accepted when determining the adjournment request, the First-tier Tribunal had considered inappropriate authorities, namely the Civil Procedure Rules and the cases under them. The Upper Tribunal should have found a material error of law and set aside the lower tribunal’s decision. Secondly, it is argued that both tribunals erred in failing to consider properly their duty under section 55 of the Act. Thirdly, it is said that the upper Tribunal erred in confusing the issue of whether an appeal could be justly determined with the issue of whether the hearing was procedurally unfair. Fourthly, although not advanced with particular vigour from Ms Laughton this morning, it is said that the First-tier judge erred in failing to consider the evidence relating to the treatment of children suffering from autism in Malawi and that the Upper Tribunal failed properly to determine this second ground of appeal at all.

[17]Those are the grounds that are advanced. In considering the case on the papers, the views of Lloyd Jones LJ are as follows; not citing all of them, but his decision on the four grounds which I have just endeavoured to state, were these:

“Ground 1. The First-tier judge referred to the CPR authorities by way of analogy only and made clear that he had in mind the terms of paragraph 21(2) of the Procedure Rules 2005. His point that parties must take the opportunities given them to prepare their case was validly made. Ground 2. The duty under section 55 of the … 2009 Act cannot require a judge to grant an adjournment whenever there is a possibility that further evidence may be obtained which may be relevant to the issue of what is in the best interests of the child. Ground 3. The First-tier judge, when considering the application for an adjournment, correctly directed himself that the test is whether the appeal should be justly determined. Ground 4. The First-tier judge correctly considered the specific conditions which would be experienced by the third appellant in Malawi and concluded that there is a private sector educational provision for autistic children in Malawi which her parents would probably be able to afford.”

[18]Lloyd Jones LJ also concluded that, as this was a second appeal, the case did not present any important point of principle or practice, nor was there any other compelling reason why the Court of Appeal should hear this case.

[19]I am broadly in agreement with those conclusions. It seems to me that this was clearly an application for an adjournment based on perfectly understandable grounds made by Ms Laughton, but the judge exercised his discretion perfectly properly. He made an unfortunate reference to authorities which were not directly in point, but this was essentially a case management decision which any experienced judge is capable of taking without undue regard to authorities one way or another relevant or otherwise. The judge is faced by the circumstances confronting him in the individual case, and for my part I cannot see any arguable error that the judge made in refusing the adjournment.

[20]In my judgment, both tribunals considered the matter fairly. They were clearly conscious of the duty arising under section 55 of the 2009 Act and, moreover, what is absolutely apparent apart from anything else, there is not the slightest prospect of any important point of principle or practice arising in this case. This is a proposed appeal arising out a decision not to grant an adjournment. Nothing could be further afield from a point of principle or practice than such a matter. The application is, therefore, hopeless and it is refused.

Order

Application refused