The English Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases in the case of JD (Congo) and others v Secretary of State for the Home Department Public Law Project. The test requires that “the proposed appeal would raise some important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear the appeal.”
Sullivan LJ commented “it is important not to lose sight of Lord Dyson’s warning that care should be exercised in giving examples of what might be some other compelling reason because it will depend on the particular circumstances of the case. Undue emphasis should not be laid on the need for the consequences to be truly drastic.” He commented further “while the test is a stringent one it is sufficiently flexible to take account of the particular circumstances of the case. It seems to us that those circumstances could include the fact that an appellant has succeeded before the First-Tier Tribunal and failed before the Upper Tribunal.....where they apply those circumstances do not of themselves amount to some other compelling reason but they are capable of being a relevant factor when the court is considering whether there is such a reason.”
The Court permitted its judgment to be cited as authority due to the important issues the case raised - normally judgments on permission to appeal cannot be cited.
Click here to see the judgment in full.
Click here to see a post by the UK Human Rights Blog on the case.
Meanwhile, in Dauhoo v. Secretary of State for the Home Department, the UK Upper Tribunal (Immigration and Asylum) Chamber clarified the requirements to qualify as an ‘extended family member’ under EU Directive 2004/38/EC. The case concerned a Mauritian who claimed to be dependent upon his UK resident sister. The claim was rejected by the court.
The test stipulated within the Directive to decide whether an individual is an “extended family member” contains both a “prior” and a “present” test. Prior to entry into the member state the applicant must have been either dependent upon the EEA national relative or have been a member of their household. After the applicant’s arrival into the UK they once more must be either dependent upon the EEA national or a member of their household. The court held that combinations of the dependency and household member requirements can be used, and it is not necessary to have been dependent both previously and presently or a household member both previously and presently. For example, you may have been dependent before arrival to the UK and after arrival became a member of the EEA national’s household. The options of dependency or household membership are alternatives rather than conjunctives and “to read in such a requirement would be contrary to the stated underlying purpose of facilitating the residence of such persons”.
Click here to see a blog post by Brophy solicitors on the decision.