The Home Secretary has lost a case where it was argued that a refugee who held indefinite leave to remain in the UK should not be permitted to return to the UK based on his right to a private life. The refugee in question had lost his travel document while outside the UK, tried unsuccessfully to get another one from the British embassy but failed to do so because the Home Office had not kept a record of his grant of indefinite leave.

Remarkably, this was a Cart judicial review (where a decision of the Upper Tribunal to refuse permission to appeal can be challenged by judicial review) that had been appealed to the Court of Appeal, indicating a litany of judicial failures at earlier stages. The case is Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] EWCA Civ 372.

Background

The appellant is a Somali national who came to the UK in April 2000 when he was 9 years old. He came to the UK under refugee family reunion provisions to join his father, along with his mother and siblings. All of the family were granted indefinite leave to remain in 2004. The appellant was issued with a travel document valid for ten years from 9 June 2004 to 9 June 2014. These documents are issued for ten years only where the person holds indefinite leave to remain and so the existence of this was evidence that he held indefinite leave.

In 2008 the appellant was diagnosed with tuberculosis and went to Djibouti in the hope that the warm weather would help his recovery. He lost his travel document and travelled to Ethiopia to seek assistance from the British Embassy. The officials at the Embassy did not accept that the appellant had indefinite leave to remain, even though he provided them with a copy of the lost travel document. This is because the Home Office had failed to keep a record of the grant of indefinite leave to remain to the appellant.

The appellant has been in Ethiopia ever since. In December 2010 his indefinite leave to remain lapsed because he had been outside the UK for two years. This meant that he had to apply for entry clearance as a returning resident.

It took the appellant’s mother a long time to save up money for lawyers, as she has a number of debilitating medical conditions and is in receipt of public funds. However she eventually managed this and an application for entry clearance was submitted on 2 May 2015. This included the appellant’s national insurance number as well as details of his lost travel document and explained that he could not return to Somalia nor did he have status in Ethiopia.

The application was refused on 25 June 2015 on the grounds that there was a lack of evidence that the appellant had indefinite leave to remain. The refusal letter did not engage properly with the application and did not mention the loss of the travel document or acknowledge that the reason he was in Ethiopia was to try to return to the UK. The decision was not appealed.

In 2017, the appellant’s mother’s MP was told that the Home Office had no record on their system of the appellant being granted indefinite leave to remain.

In January 2019 another application for entry clearance was made, this one as a dependent adult. This was also refused and that decision was appealed.

The appeal in the First-tier Tribunal

The appellant appealed against the refusal of entry clearance. The Home Secretary failed to comply with the directions for disclosure, with the result that the tribunal did not have before it copies of everything that had been sent with the application for entry clearance.

The appeal was made on the basis that refusing the appellant re-entry to the UK to resume his life in the UK was a disproportionate interference with his article 8 rights. He was unable to establish a private or family life in Ethiopia because of his lack of lawful immigration status and as a refugee he could not return to Somalia.

First-tier Tribunal judge Rhys Davies found that the appellant did not meet the requirements of the immigration rules as a dependent adult. In respect of the article 8 private life element of the case, the judge [at 3]:

relied upon his interpretation of a decision of this Court, Abbas v Secretary of State for the Home Department [2017] EWCA Civ 1393 which had not been cited nor referred to in any of the materials before the Tribunal, including the Secretary of State’s refusal letter. The judge said of that aspect of the claim that Article 8 ECHR was not engaged

This had not been the subject of legal submissions by either party or raised by the judge during the hearing. Even the Home Office presenting officer had seemingly accepted that the appellant’s article 8 rights were engaged in respect of his private life, and had focussed arguments on proportionality as a result.

The tribunal judge also rejected the article 8 family life element of the claim, finding that there were no compelling circumstances in this case that would require a grant of leave outside the rules.

The judge also criticised the appellant’s mother for not attempting to contact the Home Office for a replacement travel document despite the guidance stating that the application could only be made by the person and not by someone else on their behalf. The application could also only be made from within the UK.

Unsuccessful attempts to overturn the appeal decision

The Upper Tribunal judge rejected the application for permission to appeal on 24 May 2022, stating that the grounds were “no more than a disagreement with the findings and decision and an attempt to reargue the appeal”.

The new restrictions on Cart judicial reviews were brought into force by the Judicial Review and Courts Act 2022 on 14 July 2022 and therefore did not apply here. Permission in the Cart judicial review was refused by the High Court and that decision was the one under appeal to the Court of Appeal.

The Court of Appeal

The judgment starts by saying that this “is by any standards, and in many different respects, a most extraordinary case”.

The question to be decided was “Is the private life aspect of Article 8 of the European Convention on Human Rights (“ECHR”) engaged when a resident non-national who was granted indefinite leave to remain, and whose travel document has been lost or stolen whilst abroad, seeks re-entry to the United Kingdom to resume their life in the United Kingdom?.”

The Court of Appeal did not agree that Abbas (Colin’s write up of that is here) was relevant in this case as it did not address a scenario where a person had already established a private/family life in the UK. That was an entry clearance appeal where the applicants wanted to visit family in the UK. The Court of Appeal in this case said that while the decision in Abbas is that article 8 does not oblige the UK to allow a non-national to enter in order to develop a private life here [at 40], there was an implicit recognition in Abbas that settled migrants were in a different category to the applicant in Abbas [at 35].

The Court of Appeal was explicit that Abbas does not mean that “the right to respect for private life was not engaged in entry clearance cases” which is how it had been put by a Presidential Panel of the Upper Tribunal in SD (Sri Lanka) v Entry Clearance Officer, (British Citizen: Entry Clearance) [2020] UKUT 00043 (IAC). This was also an argument being pursued on behalf of the Home Secretary in this case. The Court of Appeal said that this case was a “markedly different” situation, where a settled migrant had been denied re-entry after a period of temporary absence.

The court concluded at [61] that:

The FTT judge misinterpreted Abbas. That was an error of law. The UT judge should have granted permission to appeal on the basis that there was an arguable error of law in the determination which had a real prospect of success. The error, which this Court has now established after hearing full argument, was plainly material. Remitting the question of permission to appeal to the UT in these circumstances would not serve the overriding objective. Since the FTT judge did not go on to consider the question of proportionality of the interference with the appellant’s private life, that is something which the Upper Tribunal will need to address on the appeal. However, unlike the UT judge who refused permission to appeal, it must carry out a proper evaluation of the situation in which the appellant found himself.

The appeal was allowed, permission for judicial review granted and the claim allowed, the decision of the Upper Tribunal refusing permission to appeal was quashed, permission to appeal to the Upper Tribunal was granted and the case remitted to the Upper Tribunal.

Conclusion

By the time the case got to the Court of Appeal the Home Secretary had accepted that the appellant had previously held indefinite leave to remain [at 42]. The fact that the blame for the appellant’s prolonged period of absence from the UK and his family, in the most extraordinarily difficult of situations, was entirely the Home Office’s seems to have had no impact on the decision to fight this case to the end.

Unbelievably, this man’s ordeal is not yet over as the appeal is now set to return to the Upper Tribunal that mishandled it previously, with all the delays, additional separation and costs that entails. The Home Secretary should instead concede the matter and grant him entry clearance immediately, as well as providing a sincere apology for the terrible mistakes that have been made with his case. I also hope that the appellant will be able to pursue a damages claim of some sort, although no amount of money can compensate for the loss of this much of a life.