Case No: C2/2015/2581
Neutral Citation Number: [2016] EWCA Civ 716
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Clive Lane
JR/12172/2014

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/07/2016
Before :

LORD JUSTICE ELIAS
and
LORD JUSTICE UNDERHILL

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Between:

	AMITA THAPAR	Appellant
	
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	SECRETARY OF STATE 
FOR THE HOME DEPARTMENT	
Respondent	

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The Appellant appeared in Person 
No appearance from the Respondent

Hearing date: 19 May 2016

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Judgment
Lord Justice Underhill : 
1.	This is a renewed application for permission to apply for judicial review following refusal by myself on the papers.  In circumstances which I explain below it became necessary for us to adjourn the hearing in order to obtain further information and submissions from the Respondent.  The Applicant has put in a written response to those submissions.  Having considered the further material and submissions I would grant permission to appeal.  Because the history is complicated, I need to give my reasons at a little length.  
2.	The Applicant is an Indian national born on 27 May 1975.  She entered the UK on 17 January 2003 as the wife of Sanjeev Takyar, who was settled here.  Between December 2003 and early 2014 she made a series of applications for further leave to remain, all of which were refused.  Appeals against two of those refusals were dismissed by the First-tier Tribunal and permission to appeal to the Upper Tribunal was refused; and two applications for permission to apply for judicial review were likewise refused.  In 2009 the Applicant was served with a notice that she was liable to be removed.  During this period, after her marriage to Mr Takyar had broken down, she had a son, Yashmeet, in December 2010, by a different father, who has sadly since died.  
3.	I need not give any detail of these earlier applications, but I should mention one point which the Applicant wishes to emphasise.  Her first application, which was made on the basis that she was the victim of domestic violence at the hands of Mr Takyar, was refused in July 2004 without her being accorded a right of appeal.  In 2011 she realised that she should have been accorded such a right, and eventually, by letter dated 17 July 2013 UKBA acknowledged that that was the case, though but it did not accept that that error was material to her current immigration status.  The Applicant is very aggrieved by this episode, which she says was responsible for many years of uncertainty and distress that could have been avoided if she had been accorded an appeal in 2004.  However it does not feature in the grounds of appeal before us.  
4.	On 24 April 2014 the Applicant made an application for leave to remain under article 8 “outside the Rules”.  The basis of her claim was essentially two-fold.  First, she relied on her family life with her sister, Mrs Chadhar and her husband and three children, with whom she lived.  Secondly, she said that if she were returned to India the parents of Yashmeet’s father would claim, and be granted, custody of him.  I need not give further details in view of the limited nature of the issues raised by the proposed appeal.  
5.	On 9 April 2014 the Applicant submitted a further application, on form FLR (FO) for leave to remain as Yashmeet’s mother.  
6.	In connection with one or both of the applications the Applicant submitted witness statements from herself and her sister.  
7.	Both applications were refused on 19 June 2014.  The reasons given are very short.  
8.	On 6 October 2014 the Applicant issued judicial review proceedings.  That was of course out of time.  She applied for an extension of time on the basis that she had tried to issue proceedings in time but had erroneously omitted to include the fee.   The grounds on which judicial review was claimed do not appear to have been professionally drafted and are not very focused.  One point made is that removal would interfere with the Applicant’s family life with her sister, but there is also an opaque reference to the episode in 2004 when she was not notified of her right of appeal.  In support of the claim the Applicant lodged the materials previously submitted with her FLR applications.
9.	The Secretary of State believed that the witness statements lodged with the claim form had not been lodged with the original applications.  In accordance with her usual practice in such cases, she treated what she believed to be the new information as constituting further representations in support of a purported fresh claim under paragraph 353 of the Immigration Rules.  By a letter dated 20 November 2014 she refused to recognise the witness statements as giving rise to such a fresh claim.  At the same time she served summary grounds of defence relying on the original decision and the letter of 20 November 2014.  The summary grounds took no point on the claim being out of time.  
10.	The Secretary of State has now acknowledged, in response to comments made by me when I first refused permission on the papers, that the responsible case-worker had misunderstood the position and that since the witness statements supplied with the claim form had also been provided with the applications the supplementary decision of 20 November 2014 was unnecessary.  Very properly, a witness statement has been lodged explaining what happened and apologising for the error.  It should never have occurred in the first place and has led to unnecessary complications, as mentioned below; but it does not affect the fundamentals of the case. 
11.	In response to the summary grounds of defence the Applicant lodged a document headed “Additional Evidence”, which consists more of argument than of evidence.  The Applicant challenged some of the details of her immigration history as stated in the summary grounds and emphasised again the mistake that had been made in denying her a right of appeal in 2004.
12.	The application for permission to apply for judicial review was refused by UTJ Clive Lane on the papers on 27 May 2015.  His decision reads:
“1.	The respondent has accepted that the applicant made an application for leave to remain on the basis of domestic violence in 2003 which should have attracted a right of appeal.  However, the applicant has subsequently submitted numerous applications to remain in the United Kingdom, including a further domestic violence application with a right of appeal.  The applicant’s appeal in that instance was dismissed by the First-tier Tribunal in December 2011.  It is not arguable that the applicant, in light of that litigation history, might now succeed in judicially reviewing a decision of the respondent of 30 June 2014 [sic: this was in fact the date the decision was received by the Applicant’s representatives] on the basis of a long past and now wholly irrelevant error by the respondent.
2.		Otherwise the applicant’s grounds are no more than a series of disagreements with the decision of the respondent which was manifestly available to her on the material produced by the applicant.”
13.	The application was renewed at an oral hearing before UTJ Goldstein on 28 July 2015.  The Applicant was represented by Mr Rajiv Sharma of counsel.  He submitted a skeleton argument.  Unfortunately we do not have a copy, but we do have the skeleton argument drafted by him in support of the appeal to this Court.  The Applicant’s understanding is that the two are substantially identical.  That may be so, though it appears from the judgment of the UTJ that some points were argued which do not appear in the skeleton before us.  However, all that matters for present purposes is that it included at least the following two grounds:
(1)	The removal decision ground.  Mr Sharma contended that this was a case where the Secretary of State should have accompanied her decision to refuse leave with a removal decision, which would have given her a right of appeal.  He said that the Applicant had requested such a decision in her representatives’ pre-action protocol letter dated 28 July 2014.  He acknowledged that the authorities established that the Secretary of State was not ordinarily under any such duty, but he relied on published Home Office guidance, which said that a removal decision should be made, if requested, in various exceptional circumstances including “where the refused application for leave to remain included a dependent child under 18 resident in the UK for three years or more”.  
(2)	The supplementary decision ground.  Mr Sharma argued that the Secretary of State’s letter of 20 November 2014 should be ignored on the basis of the authorities which deprecate attempts by the Secretary of State to rely on subsequently provided reasons.  Mr Sharma did not take the point that the supplementary decision was unnecessary in the first place: I dare say he was not aware of the error about what had been included with the original applications.
14.	UTJ Goldstein refused permission.  The reasons discuss some points beyond the two identified above, but I need only be concerned with the latter.  As to them:
(1)	He held that the case fell within the general rule confirmed by the Supreme Court in Patel v Secretary of State for the Home Department [2013] UKSC 72 that the Secretary of State was not obliged to make a removal decision when refusing leave to remain.  He acknowledged that the position might be different if there were “exceptional circumstances”, but he said that that was “not the situation here, notwithstanding reference to the guidance to which I was referred by Mr Sharma”.  He did not refer to the specific reference to a dependent child.
(2)	He rejected the argument that the decision of 21 November 2014 should be ignored on the basis that the letter was “generated by the further submissions and not for the purposes of curing any defect or inadequacy in the first decision letter”.  That was factually wrong: no-one drew had drawn his attention to the fact that the letter had been written under a misunderstanding.  However, he also said that even if he had excluded the letter his decision would have been the same.
He refused permission to appeal to this Court.
15.	The Applicant then applied for permission to appeal to this Court.  The grounds and skeleton argument were settled by Mr Sharma.  The Secretary of State submitted a written Response.  As I have said, I refused permission on the papers.  I did, however, direct that if the application were renewed it should be head before two judges because it seemed as though the point raised by ground 2 had been the subject of conflicting decisions at first instance.
16.	On this oral renewal the Applicant was unrepresented.  She did not submit any grounds or skeleton argument to replace those settled by Mr Sharma. I take them in turn.  
17.	Ground 1 is the removal decision ground.  I refused permission on the papers on this ground because of a passage which at para. 7 of her Response the Secretary of State said appeared in “the published Requests for Removal policy guidance Version 6.0 … in force at the time of the Respondent’s letter dated 20th November 2014”, as follows:
“[This guidance] does not apply to cases where the person has been told that they are liable to removal under section 10 of the Immigration Act 1999 (as amended by the Immigration Act 2014), and they continue to be liable for removal under that power.”
	As already mentioned, the Applicant had been so notified in 2009.
18.	However, at the hearing the Applicant pointed out that the relevant decision was dated 19 June 2014 and that version 6 had only been promulgated in October 2014.  She said that the version current in June 2014 was not available online.  It was in order to investigate that position that we felt it necessary to adjourn in order to make enquiries with the Secretary of State.
19.	In written submissions dated 27 May 2016 the Treasury Solicitor acknowledges not only that the version of the Guidance referred to in the Response was not in force at the material time but that the then current version did not contain the passage which it had relied on.  An apology is offered – the third which the Secretary of State, or the Government Legal Department, has had to make in respect of her handling of the Applicant’s case.  However, it is submitted that the Applicant nevertheless did not fall within the terms of the policy because “she did not request a removal decision either in the letter before action or in the grounds for judicial review”. 
20.	In her submissions in response the Applicant says that, contrary to what the Treasury Solicitor says, she did include a request for a removal decision in her letter before action dated 28 July 2014, as indeed Mr Sharma had asserted in his skeleton argument.  She annexes a copy of that letter, which was drafted by her then representatives.  It is correct that it does not in terms ask for a removal decision, but in the summary passage setting out the relief sought item 3 is “Grant our clients an in-country right of appeal”.  In our view it is arguable, to put it no higher, that that request necessarily implies a request for a removal decision, since without it there would be no appealable decision. Since the Secretary of State does not advance any other reason why the Applicant did not fall within the terms of the relevant exception in the policy, it follows that permission to appeal should be granted on ground 1.
21.	Ground 2 is the supplementary decision ground.  If the Applicant eventually succeeds on ground 1, so that she becomes entitled to an appealable removal decision, this will become irrelevant; but I ought not to assume that that will be so.  When I refused permission on this ground on the papers it had not yet become clear that the letter of 20 November 2014 was written under the misunderstanding explained above.  I am not sure that the fact that the letter was unnecessary necessarily undermines the conclusion of the UTJ; but in circumstances where the appeal must proceed in any event I think the better course is to give permission on this ground also.
22.	Ground 3 complains that the UTJ wrongly failed to give Mr Sharma the opportunity to make submissions on the issue of permission to appeal.  Since that has now been granted the point falls away.
23.	I would direct that the appeal be listed before two Lord/Lady Justices, at least one of whom should have immigration/asylum expertise, with an estimate of two hours.  However, I would invite the parties, and in particular the Secretary of State, to give serious consideration to whether it makes sense for further cost and effort to be devoted to these proceedings.  If ground 1 is eventually upheld there will have, on the face of it, to be an appealable removal decision, and there would be much to be said for that nettle being grasped now – though if this is the course taken the Applicant would need to be given the chance to update her evidence and submissions.  That would be my view even without the sorry history of mistakes made in the handling of this case; but it might be thought that they reinforce the case for a fair and early decision.
24.	Even if the course suggested above does not prove possible, it is open to the parties to agree a compromise under which the appeal is allowed on the basis that permission to apply for judicial review is granted and the substantive application remitted for determination by the UT.
Lord Justice Elias:
25.	I agree.