If there is one piece of advice practitioners take away from this post, let it be this: in ANY application you prepare, take the time and the effort to fully explain and particularise your client’s circumstances in your letter of representations. In applications for leave to remain under Article 8, the law is rarely in dispute. But it is so important to get the facts set out clearly and with as much supporting evidence as possible. Unfortunately, Kaur v Secretary of State for the Home Department [2018] EWCA Civ 1423 is yet another example of how not to prepare such an application — and the Court of Appeal didn’t hesitate to say something about it.

Unexpected success in “insurmountable obstacles” judicial review

Mrs Kaur’s husband had initially applied for asylum and then sought leave under the Legacy scheme, together with his wife and children. Whilst his application was eventually granted, no decision was made on Mrs Kaur’s claim despite the Home Office having specifically requested information about her at the time the application was made. The solicitors acting for Mr and Mrs Kaur sought clarification on why Mrs Kaur’s claim had not been considered. It was not clear whether they thought an application had been made but in any event no evidence was produced to court showing that there had been.

Instead, of challenging the Home Office’s refusal to issue a decision, Mrs Kaur’s solicitors seem to have applied for leave to remain for her under Article 8. Mrs Kaur had been present in the UK illegally and so relied on there being “insurmountable obstacles” to her continuing family life outside the UK with her husband. Add in a poorly prepared application, and you can see that this case was doomed from the outset.

As you might expect, the application was refused on the basis that Mrs Kaur had not lost all ties to India and there were no insurmountable obstacles to family life continuing outside the UK with her husband. The decision letter also noted that the family life built up with her adult daughter in the UK was not relevant given her daughter was married and living independently.

It was therefore surprising when Alexandra Marks, sitting as a deputy High Court judge, overturned the Secretary of State’s decision on the basis that it:

…failed to give any reasons for her conclusion that there were no insurmountable obstacles to the claimant and her husband continuing their relationship were Mrs Kaur to return to India, and omitted to mention any consideration of factors relating to the practical possibilities of their relocation there.

Undeterred, the Secretary of State launched an appeal, which was stayed pending the decision of the Supreme Court in R (Agyarko) v SSHD [2017] UKSC 11.

A crushing victory for the Secretary of State on appeal

The Court of Appeal had little hesitation concluding that there was a “real paucity of evidence” and the “bare and insufficient” assertions made by Mrs Kaur were without foundation. Lord Justice Holroyde considered that the deputy High Court judge had fallen into error in criticising the Secretary of State for not considering matters which had clearly not been raised in Ms Kaur’s application. She had also misdirected herself in focusing on the “practical possibilities of a return to India” rather than focusing on the “insurmountable obstacles” to family life continuing outside the UK, the latter being the relevant test under Appendix FM.

In particular, the court expressed surprised with the High Court finding that Mrs Kaur had lost ties to India. This was a surprising conclusion given that Mrs Kaur was 53 years old at the time of the application and had only been living in the UK continuously for six years. The problem was obvious (or at least should have been).

Lord Justice Holroyde concluded:

Whatever sympathy one may feel for the present situation of Mrs Kaur and her husband, the proper application of those rules to those facts leads, in my judgment, to the conclusion that the appeal must succeed and the decision of the Deputy Judge must be set aside. That result may seem harsh, and I recognise that it will no doubt come as a bitter blow to Mrs Kaur and to Mr Singh; but it is the decision to which I feel bound to come.

This case is one of the rare occasions where I agree with the Secretary of State’s submissions. A poorly prepared application cannot be bolstered by fancy grounds of appeal at a later stage. It is unbelievably frustrating the amount of times I have requested a file from a client’s previous representatives only to see the same generic arguments spewed out time and time again. It is simply a waste of everyone’s time and hard-earned money.