Case No: C5/2007/2930
Neutral Citation Number: [2008] EWCA Civ 472
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: HR/00489/2005]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 2nd April 2008

Before:

LORD JUSTICE MOSES
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Between:

	RP (ZIMBABWE)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr P Lewis (instructed by the Immigration Advisory Service) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Moses:

1.	This is an application in which it is said that the Senior Immigration Judge Chalkley was not entitled to detect an error of law. The error of law that was detected was said to be findings by the original judge, HHJ Oakley, in relation to the possibility of the appellant being able to come either as a student to the United Kingdom or under a work permit. Rightfully Senior Immigration Judge Chalkley said that the fact that an applicant is unable to obtain entry clearance is no ground for saying that his rights under Article 8 had been interfered with.  

2.	In my judgment, it is arguable, with a real prospect of success, that Immigration Judge Chalkley should not have identified any such legal error, which he purported to identify at paragraph 25 and pursued at paragraph 29.  

3.	What had happened before Immigration Judge Oakley at the time of his determination of July 2005 were contentions by this applicant and his cousin that it would be disproportionate to require him to return to Zimbabwe where at the time there were only grandparents who could supply very limited emotional support and nobody else, whereas the parents in the United Kingdom could provide not only financial but the emotional support.

4.	In response to that case the Secretary of State contended that from time to time the applicant could come, either under a student visa or possibly under a work permit. It was that response that met the repost from the Immigration Judge Oakley that in fact the applicant would not be able to do so, since to do so would circumvent the immigration rules; see paragraph 35. It was therefore, in my view at least, strongly arguable that to identify that as an error of law and as a ground for allowing the appeal, as Immigration Judge Oakley did, was itself incorrect as a matter of law.  All Immigration Judge Oakley was doing was to deal with the response of the Secretary of State.  It was not the ground for his decision on the appeal, which rested upon the ties and support this appellant and his cousin would have, were he allowed to remain in the United Kingdom.  That was the only error of law identified by Immigration Judge Chalkley.  If it was wrong there was no basis for a reconsideration.  

5.	The Immigration Judge did go on to consider the question of support in Zimbabwe at paragraph 28, but that was merely a different view of fact and, as AH (Sudan) v SSHD EWCA Civ 297 reveals, one has to be extremely careful in identifying any error of law as opposed to fact in looking at the original determination of the fact finder.

6.	The only error of law, therefore, was arguably wrong and it is therefore strongly arguable that there was no right to have a reconsideration in favour of the Secretary of State.  

7.	I am fortified in my view that there ought to be an appeal by the fact that, unfortunately, the cousin whose case was heard at least at some stage at the same time as this applicant has been granted permission to appeal on a different ground; and it is clearly better that their cases, which depend upon the same factual context, should be heard together and I order that the two appeals should be heard together: two and a half hours, three judges, one may be a High Court judge, and it seems to me that representation should be the same for both.  

Order: Application granted