2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
EV and her family, Philippine nationals, had their applications for indefinite leave to remain in the UK rejected. Appeals were dismissed at various tribunal levels. The core legal issue was whether the children's best interests in continuing their education in the UK outweighed the need for immigration control. The Court of Appeal dismissed the appeal, holding that the need for immigration control outweighed the best interests of the children. Judges emphasized the real-world context of the parents' immigration status in evaluating the proportionality of the decision.
Judgment
LORD JUSTICE CHRISTOPHER CLARKE:
This is an appeal from a decision of the Upper Tribunal (UT) rejecting an appeal from the First Tier Tribunal (FTT) which had rejected the Appellants’ appeal from the refusal of the Secretary of State (“SOS”) on 6 November 2012 to accede to their applications of 25 March 2011.
The proceedings have a chequered history some of which it is necessary to set out.
On 12 June 2007 EV, who is a Philippine national, entered the United Kingdom with a work permit as a Skilled Care Worker and was given leave to remain until 8 February 2011. She was joined on 25 April 2008 by BV, her husband, as a dependent partner; and on 17 July 2009 by their three children – (a) KrV (born 15 April 2001), their daughter; (b) BV (born 16.5.02), their son; and (c) KaV (born 30 August 2004), another daughter; as dependants on EV’s visa.
On 7 February 2011 the Appellants applied for indefinite leave to remain. If their applications were in the correct form they were made in time. However, on 8 March 2011 they were rejected on the ground that they were (allegedly) made on a form that was no longer valid.
On 25 March 2011 the Appellants made renewed applications for indefinite leave to remain as, in the case of EV, a Tier 2 General Migrant and, in the case of the others, as dependents. On 15 July 2011 those applications were refused by the SOS who said that there was no right of appeal. On 25 July 2011 notice of appeal was filed against that decision, disputing the contention that there was no right to do so. Thereafter three hearings had to be adjourned because no representative of the SOS appeared at them. On 10 February 2012 the SOS sent a representative to a hearing but without any file.
On 26 March 2012 FTT Judge Herlihy decided that the appellants had no right of appeal as the decision of 25 March 2011 was not within the definition of an “ immigration decision ” in section 82 (2) of the Nationality, Immigration and Asylum Act 2002 since the Appellants had, as he held, no leave to remain when they made their applications on 25 March 2011. It appears that she was not aware of the fact that the applications of 7 February 2011 may well have been on valid forms.
Judge Herlihy recorded, as was the fact, that there had been a repeated failure by the SOS to comply with directions issued by the Tribunal. She urged the SOS, given the passage of time, to consider the further representations made by the Appellants’ representative in December 2011