Case No. C2/2015/1286 
Neutral Citation Number: [2015] EWCA Civ 679
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL 
(IMMIGRATION AND ASYLUM CHAMBER) 
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Date: Tuesday, 22 April 2015
 
B e f o r e: 

LORD JUSTICE McCOMBE 
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Between: 
THE QUEEN ON THE APPLICATION OF RA (A CHILD BY HIS LITIGATION FRIEND)(NIGERIA) AND ANR 
Respondent

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT AND ANR 
Appellant 
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DAR Transcript of the Stenograph Notes of  
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Ms D Rhee (instructed by Government Legal Department) appeared on behalf of the Appellant
Ms S Harrison QC (instructed by Bhatt Murphy) appeared on behalf of the First Respondent
Ms Gallafent QC (instructed by Freshfield ) appeared on behalf of the Second Respondent 
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J U D G M E N T 

1.	LORD JUSTICE McCOMBE:  As will become apparent, the judgment I am about to deliver is on a point of very narrow ambit on the facts of one particular case.  There have been attendances in the course of courteous, helpful and (as usual) very learned submissions from counsel who appeared before me to elevate this application into something of a state trial.  For my part, I do not accept that invitation.  It seems to me that this is a decision that I have to make in the narrow confines of the facts that arise in this particular case.  
2.	This is an application made by the Secretary of State for the Home Department for permission to appeal from a decision of the Upper Tribunal of 13 April of this year, a matter of nine days ago, if I get my calculations correct.  This decision was made in judicial review proceedings brought by the Respondents to the present application, who are called RA, for the purposes of anonymity, and his mother, BF.  RA is a child now aged 5.  His mother is aged 45.  
3.	The proceedings in the Tribunal challenged the decision of the Secretary of State made by letters of 22 and 23 January this year to refuse to treat submissions advanced by the Respondents individually or collectively to her as "fresh claims" to asylum and human rights protection and to consider of the rights to private life under Article 8 of the European Convention on Human Rights.  
4.	The proceedings challenged an alleged failure by the applicant Secretary of State to address the risks for the child, RA, if removed to Nigeria flowing from the decline in the mental health of the mother, BF, and her resultant potential inability to care properly for his needs.  
5.	It was argued that the Secretary of State had failed properly to apply section 55 of the Borders, Citizenship and Immigration Act 2009.  I will not quote that section, which is well‑known, but in broad it requires the Secretary of State in the exercise of her functions of this sort to have regard to the need to safeguard and promote the welfare of children.  
6.	The Upper Tribunal, in a judgment given by Cranston J and Upper Tribunal Judge Reeds, granted judicial review of the Secretary of State's decisions and ordered her to take all reasonable steps promptly to return both RA and BF to the United Kingdom within ten days and in any event by 23 April 2015, i.e. tomorrow.  The Respondents had already been removed to Nigeria on 23 January 2015 following the rejection of their representations which were challenged in the proceedings.  
7.	It will be understood from that brief statement of the ambit of these proceedings that there is a degree of urgency in the matter that is brought before me today.  
8.	The Secretary of State does not seek to appeal against the underlying ruling of the Upper Tribunal granting judicial review of her primary decisions made which were challenged below.  However, the Secretary of State does wish to appeal against that part of the order directing the return of the Respondents to this country.  
9.	The challenge in the grounds of appeal submitted in writing helpfully and fully and set out in the appellant's notice are, in summary, these.  
10.	Ground 1 states that there was no flagrant breach or apparent unlawfulness of the removal at the time that it was effected in January 2015.  In particular, it is submitted, in the context of that ground, that the Secretary of State's challenged decisions did not carry with them a right of appeal for the Respondents while they remained in the United Kingdom, it being submitted that such a challenge could only be made from abroad.  
11.	The ultimate availability, at the end of the decision‑making process following the Tribunal's decision in the Respondents' favour, of "in‑country" appeals or an "in‑country" possibility of applying for judicial review is very much in contest between the parties and may well turn again into a contest following the reconsideration which the Secretary of State accepts she is obliged to make following the failure to resist the judicial review challenge below.  
12.	In the second ground of appeal, it is argued that the possibility of challenge by the Respondents to any future decision of the Secretary of State should have no bearing on whether a return to the United Kingdom for these Respondents should or should not be ordered.  
13.	Thirdly, it is submitted that a return could prejudice the child, RA, if he was to be subjected to a further removal following a reconsideration of his position after the Upper Tribunal's decision.
14.	Fourthly, it is submitted that evidence of circumstances arising post‑removal, that was considered by the Upper Tribunal in deciding what relief to be granted, was not such as to justify ordering a return to the United Kingdom in the meantime.  
15.	Those are the formal grounds of appeal which have been amplified in the course of oral submissions by Ms Rhee for the Secretary of State this afternoon.  
16.	It should be said that pending this application the Secretary of State, as it demonstrated by evidence, has quite correctly taken proper steps to comply with the Upper Tribunal's order.  In a witness statement that is before me, it is shown that arrangements have now been made for the Respondents to be accommodated on a flight to London which is due to arrive here during the course of tomorrow, i.e. within the specified time in paragraph 4 of the Upper Tribunal's order.  
17.	I have before me and have taken into account materials from both sides relating to what interim measures have been taken since the Tribunal's order in relation to the position of the Respondents while they remain in Nigeria.  
18.	In reaching its decision to make an order for return of the Respondents, the Tribunal focused on four factors, one which is said in the end was only something to go into the balance, using the Tribunal's words.  
19.	The first point was that it was a case involving a child where the Applicant had been found to be in breach of her duty under section 55 of the 2009 act.  
20.	Secondly, the Tribunal in its view could not ignore the substantial information accumulated about RA's background circumstances, much of it now summarised helpfully in the skeleton argument of the Respondent, which I have read.  Such information in the core material had been before the Secretary of State.  Its analysis and comment thereon had been considered by witness evidence placed before the Upper Tribunal, not available to the Secretary of State herself when the decision was made by her officials.  
21.	Thirdly, the Tribunal mentioned as relevant to its decision in favour of ordering a renewal what it characterised as "practical factors" relating to the timing of any reconsideration by the Applicant of the Respondents' representations that she had previously rejected and the delays that might arise in any further challenges or legal proceedings.  
22.	The fourth consideration, the one which I have already mentioned was said to be something to go into the balance, was the changes in the legal aid regime under the Legal Aid, Sentencing and Prosecution of Offenders Act, called LASPO by everybody, impacting upon the ability to conduct an appeal against the decisions under challenge from outside the jurisdiction.  
23.	The Tribunal concluded that in the light of these features and the submissions which are recited and made on behalf of the Respondents, it decided to exercise its discretion to order the Respondents' return.  
24.	It is clear and is not disputed before me that any appeal from such an exercise of discretion will only succeed if the decision was reached on the basis of some error of principle.  The discretion conferred is a wide one, in which allowance has to be made for differences in judicial opinion.  If one were to make the decision oneself, one might reach a different conclusion.  The only question is whether, in reaching its decision, the Tribunal had erred in applying the relevant principles and drawing the appropriate conclusions from them.  
25.	In order to warrant the grant of permission to appeal, it is for the Secretary of State to persuade me that appeal would have a real (as opposed to a fanciful) chance of success or that there is some other compelling reason why permission to appeal should be granted.  
26.	In support of the submission that permission should be granted and together with that a stay of the order for the return of the Respondents, Ms Rhee has sought to persuade me that the decision of the Tribunal was only a narrow one, namely that while she had endeavoured on behalf of her client to present the very real considerations of section 55 matters which had been before the Secretary of State, the Tribunal's conclusion was simply that the relevant letters "do not evidence the regard to the best interests of RA as a primary consideration" as stated in paragraph 85 of the Tribunal's judgment and that, therefore, the Tribunal was not finding that there had been a failure in fact properly to consider the interests of RA, but simply a failure to explain what that consideration was.  
27.	In contrast to that, Ms Harrison QC for the Respondents and Ms Gallafent for the intervener stress that more general comments are made in paragraph 86 of the primary judgment, which reads in full in these terms:
"In ordinary circumstances, that would be conclusive in respect of RA's interests [that is the challenge to the reasons in rejecting the representations as a fresh claim].  Young children like RA are removable with their parents and their best interests are served by being with them.  But in the special circumstances of this case, not taking into account the implications of BF's mental health for RA and the risk of that degenerating in the Nigerian context and the likely consequences of removal, the Secretary of State failed to have regard to RA's best interests as a primary consideration.  We do not consider the Secretary of State discharged that duty.  By failing to take into account the matters we have set out, we have concluded Secretary of State did not take into account material considerations and thus did not employ the requisite anxious scrutiny required."
28.	In the judgment on the relief application, Cranston J expressed himself thus, referring to his earlier judgment:
"In that judgment, we held that the Secretary of State in making a decision on representations on behalf of BF, the mother, that there was no fresh claim was in breach of her duty of section 55 of the Borders Act in not considering the best interests of the child, RA, as a primary consideration."
29.	Counsel for the Respondents submits that makes it clear that the decision was not simply a lack of evidence of the decision taken, but of a decision that there was not proper consideration given to the best interests of RA when the decisions were taken in January.  
30.	What I say here cannot possibly decide whether that was true or not.  However, I am inclined at present to the view that Ms Harrison is right in her submission on this point.  However, that to my mind is not the primary basis upon which one has to consider the applications before me.  The simple question is whether an appeal has real prospects of success or there is a compelling reason why an appeal should be heard.  That must turn on the question of whether the Tribunal erred in the exercise of its discretion, whatever its final decision may have been.  
31.	In my judgment, it is impossible to contend that this Tribunal's decision was wrong in principle.  It had carefully considered all the facts of the case in an extensive principal judgment and the judgment on the relief to be granted to the successful party must be read in the light of that full judgment.  
32.	In challenge to the points made by the Tribunal in granting the relief they did, Ms Rhee for the Secretary of State seeks to undermine each of the three points that the Tribunal made.  
33.	She submits that the first point as to clear breach by the Secretary of State in relation to RA's rights under section 55 was not a valid one.  This is reciting this in her response to Ms Harrison's submissions.  
34.	Secondly, that the need for the vindication of rights which BF and RA had under the Borders Act, Ms Rhee submits, are not of significant materiality because this is not a case where any rights under a statute are being contravened and it is not the type of case which Richards LJ was considering in YZ [2012] EWCA Civ 122.  
35.	She rejects the submission made by Ms Harrison in relation to the out of country appeal considerations which have been urged upon the Tribunal, but she attacks the principal reasoning of the Tribunal, the three factors to which I have referred, in the following way.  
36.	First, she submits that simply saying that this was a case involving a child takes the matters no further.  That was simply the fact of the case.  That was the underlying background to the granting of judicial review, but cannot found a proper basis for the exercise of a discretion to order a return to his country.  
37.	I am inclined to think that whether one bases this upon the United Nations Convention on the Rights of the Child or simply on domestic discretion factors, the fact that this is a case involving a child is a matter of some considerable significance.  
38.	The consequences involving damage to children by their being removed to countries where their interests may not be as well looked after as they are here is something which is worth considering.  The fact that there has been found to be a breach in failing to consider that child's rights is a matter of materiality in deciding whether to order the return of that child to his country.  
39.	I also consider it is important that if the Secretary of State had still been considering the representations made by the child's representatives in a proper way with regard to the considerations under section 55, then the child would not have been removed.  This is because of the restrictions imposed upon the Secretary of State under rule 353A of the Immigration Rules.  While those representations were being considered, the child would not have been removed because of the provisions of those rules.  It seems to me that is not much different from the position where somebody is to be removed in breach of a potential or a deprivation of a potential in‑country right of appeal.  
40.	Ms Rhee challenges the second point made by the Tribunal in relation to the evidence that has been accumulated since removal by the solicitors.  She says that no findings were made by the Tribunal in its main judgment as to whether those points were well‑founded or not.  
41.	For my part, I agree that the Tribunal was entitled to take into account the evidence that had been produced before it on the substantive hearing in considering the dangers of not ordering some relief in the meantime while reconsideration took place.  
42.	Thirdly, the point was made by the Tribunal that the further proceedings, in reconsideration and what may happen thereafter, could lead to further delays where the child might be left in Nigeria with the prejudice that has already been outlined in the Tribunal's second point.  
43.	Ms Rhee says that it was wrong for the Tribunal to bear those factors into account.  The delays because of adverse decisions that might be made at a later date are irrelevant to the consideration of what should be done now.  
44.	I do not accept that submission.  It seems to me that what the practicalities may be for this child, one way or another, however the Secretary of State may decide the case on reconsideration, are matters that the court must take into account.  Certainly, this Tribunal was entitled to do so and put such weight upon it as it thought appropriate.  
45.	The final point was the practicality of the legal aid regime.  What the Tribunal had in mind, I am told, is that in the present circumstances, if RA is abroad legal aid would not be available for him because the solicitors then acting had no funding and no contract to provide services for such an appeal outside the jurisdiction.  The funding of an "out of country" appeal is based on the good will of the Islington Law Centre, who have lodged the necessary documents pro bono.  
46.	While this judgment has not expressed everything I would have wished to say on an application brought with some urgency because of the flight that has been booked for these Respondents tomorrow, I hope I have explained that my broad conclusion is that this Tribunal was fully entitled to take the decision it did.  It did not err in the exercise of its discretion or arguably so.  
47.	Accordingly, I propose to refuse permission to the Secretary of State to appeal against the return order and as a consequence, refuse the stay of execution of the Tribunal's order ordering return.  
48.	The Respondents' own application for permission to appeal remains on the file, so far as they wish to pursue it.  I will hear any consequential submissions about it, but I do not propose to say any more about it now.