Court of Appeal: staying in the UK v making a new application abroad

In a decision given on 31 January 2007, the UK Court of Appeal gave the appellant permission to appeal against a refusal to grant her indefinite leave to remain in the UK as the dependent relative of a person present and settled in the UK.

The appellant, SB, had entered the UK as a visitor, although the court found as a fact that she had said things that were not true in making her application to visit the UK. She had said that she would leave the UK at the end of her visit, but in reality she did not intend to do so. The Asylum and Immigration Tribunal (AIT) found that such a future application for entry clearance (a visa) by SB would be likely to succeed.

The Court of Appeal found that the AIT had been wrong in making, and taking into account, their own assessment of SB's chances of success in a future application for entry clearance (a visa) at a British consular post abroad. Whether or not SB got a visa would be a decision for an Entry Clearance Officer in Bangladesh if, in the future, an application for entry clearance were made.

The Court of Appeal acknowledged that there were a number of UK cases in which the likelihood a person’s being given entry clearance in the future had been taken into account in deciding the question of whether the person should be forced to leave the UK, but it said that this was wrong and should not happen.

The Court of Appeal granted permission to appeal in the case of SB (Bangladesh) v SSHD [2007] EWCA Civ 28 and sent the case back to the Asylum and Immigration Tribunal to reconsider. The Court of Appeal in this case were troubled by the consideration that, in general, a person was more likely to succeed in an appeal against removal from the UK in a case where there was little or no chance of their being given entry clearance in the future. Thus it was envisaged that, if the chances of getting entry clearance in the future were taken into account, the worst candidates for entry clearance would be the least likely to succeed in their appeals against removal from the UK.

This case concerned an application to stay as a dependent relative and in such a case it is necessary to show exceptional compassionate circumstances. Home Office refusals quite often say that there are no exceptional compassionate circumstances because a person could return to their country, join the queue, and seek entry clearance from abroad. The judgment appears to rule out taking this approach. Instead, it is necessary to look simply at whether, on the facts of the particular case, the person should be allowed to stay, without considering alternative ways, such as a fresh application for entry clearance, that could be used to achieve this result.

In SB’s case, the Asylum and Immigration Tribunal concluded that her chances of being allowed to return to the UK were very good, and ruling them out of consideration increased the strength of her case. In other cases the position might be very different. other cases the situation might be very different. The judgment looks set to change current practice. Because of this and because here are different decisions of UK courts taking different approaches to this question, it seems unlikely that this case will be the end of the matter. There may be a subsequent challenge, either on this or another case.
Alison Harvey, Gherson and Co.