BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> BS (Congo) & Ors v Secretary of State for the Home Department [2015] EWCA Civ 639 (21 May 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/639.html Cite as: [2015] EWCA Civ 639 |
[New search] [Printable RTF version] [Help]
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE McCOMBE
____________________
BS (CONGO) | ||
LC (ANGOLA) | ||
LP (ZIMBABWE) | ||
HB (JAMAICA) | Respondents/Appellants | |
-v- | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Applicant/Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondents did not attend and were not represented
____________________
Crown Copyright ©
"(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C."
"The point of principle which the Secretary of State wishes to establish is that factors expressly covered in paragraphs 399-399A of the 2012 Immigration Rules cannot and should not, on their own, amount to 'exceptional circumstances' ... However, it has not been spelt out in the case-law. It would be helpful for this court to expressly establish this principle as it will help tribunals in the future to construe the nebulous phrases of 'exceptional circumstances' and 'compelling circumstances'. It will direct tribunals to look where they should be looking - ie for something that is not expressly covered by section 399-399A - and prevent them from applying a 'near miss' test. Tribunals should not apply such a 'near miss' test..."
"The distinction must be maintained between (a) establishing and (b) applying an established principle or practice correctly. Where an appeal raises an important point of principle or practice that has not yet been determined, then it satisfies CPR 52.13(2)(a). But where the issue sought to be raised on the proposed appeal concerns the correct application of a principle or practice whose meaning and scope has already been determined by a higher court, then it does not satisfy CPR 52.13(2)(a). We cannot accept the submission of Mr James that the question whether an established point of principle or practice has been properly applied in an individual case itself raises an important point of principle or practice. Were the position to be otherwise, the door would be open to second appeals in all cases which concern the application of an important principle or practice. That is clearly not what was intended."
"'Compelling' is a very strong word. It emphasises the truly exceptional nature of the jurisdiction. This is because the philosophy which underlies CPR 52.13(2) is, as explained by Brooke LJ in Tanfern [Tanfern Limited v Cameron-MacDonald [2000] 1 WLR 1311], that second appeals are exceptional. We also refer to what Brooke LJ said in Iftakar Ahmed v Stanley A Coleman and Hill [2002] EWCA Civ 935 at para 2:
'The restriction on second appeals is important because Parliament has made it clear that it wishes pretrial disputes in civil litigation to be dealt with, on the whole, at a level lower than this court. It may be that judges in the courts below may make orders which judges in this court would not have made, but the philosophy of the Civil Procedure Rules is to confirm and bolster the authority of the judges in the lower courts.'"
The reference in that to "pretrial disputes" obviously applies in the broader application of the second appeals test, not just pretrial disputes but to disputes after trials.