Case No: C2/2016/1532
Neutral Citation Number: [2017] EWCA Civ 2660
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(Mr  Justice Jay)

The Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 6 December 2017

Before:

LADY JUSTICE ASPLIN DBE

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Between:

	REGINA
(On the application of AGUMBA) 
	
Applicant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 	

Respondent	
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(DAR Transcript of WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street,  London EC4A 2DY
Tel No: 020 7404 1400  Fax No: 020 704 1424
Web: www.DTIGlobal.com        Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
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MOHSIN ASLAM appeared on behalf of the Applicant

The Respondent did not attend and was not represented 
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Judgment
(Approved)
Crown Copyright©

LADY JUSTICE ASPLIN:

1.	This is an application for permission to appeal against the decision of Jay J on 17 March 2016 refusing permission to apply for judicial review following an oral hearing.  The application for permission to apply for judicial review had already been refused on the papers by Upper Tribunal Judge Smith on 17 January 2016.
2.	The appellant was challenging the decision of the respondent, the Secretary of State for the Home Department, made on 5 August 2015: first to refuse him indefinite leave to remain on grounds of 10 years' lawful residence under paragraph 276B of the Immigration Rules; secondly, to refuse indefinite leave to remain on grounds of private and family life under paragraph 276ADE and Article 8 ECHR; and thirdly, to certify the human rights claim under section 94 of the Nationality Immigration and Asylum Act 2002 as clearly unfounded.
3.	The appellant is a citizen of Nigeria.  He was born on 3 May 1984.  He entered the UK on 29 September 2004 with leave to enter the UK as a student.  His student visa was extended twice until 31 October 2010.  He was then granted leave to remain as a Tier One Post-Student Worker until 13 December 2012.  On 14 December 2012, he submitted an application for leave to remain as a Tier One Entrepreneur.  This application was refused on 25 April 2013 and his appeal rights were exhausted on 17 March 2014.  He submitted a further application for leave to remain as a Tier One Entrepreneur on 11 April 2014 and this was refused on 1 May 2014.  The application with which this appeal is concerned was for indefinite leave to remain on human rights grounds and was submitted on 30 December 2014.  Flaux LJ refused permission to appeal from Jay J's decision on the papers on 6 March 2017. He stated that the Secretary of State had correctly concluded that the applicant was not entitled to indefinite leave to remain on the basis of the ten years continuous lawful residence.  There was no arguable flaw in the consideration by the Secretary of State of the applicant's human rights claim.  The decision to certify the claim was not capable of challenge, and the Upper Tribunal was correct to refuse the application.  He also stated that there was no prospect of success.  
4.	The order of Jay J, when refusing permission to apply for judicial review states:
"There is no arguable basis for impugning the defendant's section 94 certificate.  The applicant was not entitled to indefinite leave to remain on the basis of ten years' continuous lawful residence and there is no arguable flaw in the defendant's consideration of the Article 8 issues.  The defendant appears to have erred in relation to the child but that error could only have helped the applicant not hindered him.  The respondent's decision letter states that the appellant has a child who is a British citizen, but the appellant does not have such a child."
5.	The grounds of appeal with which I am concerned are that the judge erred in not considering whether the decision was in breach of the ECHR; the appellant has been the subject of unfair discriminatory treatment by the respondent in considering his application; no compassionate consideration has been given by the respondent; and the respondent was wrong to make the decision.  
6.	This morning the appellant has been represented by Mr Aslam. He has done so as part of the pro bono service for the Court of Appeal. I am extremely grateful for his assistance. He has not pursued the issue in relation to the ten years' residence, nor has he pursued grounds of appeal in relation to specifically the Immigration Rules.  He accepts that it would be extremely difficult to seek to appeal the decision on that basis.  
7.	The way in which he has put the case before me is that the Secretary of State's decision to certify this case is irrational and cannot be justified on the basis of what appears in the decision itself which contains on a very short and cursory consideration of the position of the appellant. At the stage of his application, however, he had a British fiancée and emotional ties as a result and rights to family life as did his fiancée, whom it is said in the decision letter could move with him to Nigeria.  
8.	Mr Aslam says that the decision fails to take account of the fiancée's Article 8 rights properly or at all, or properly to assess the situation taking into account all relevant factors.  In that regard, I have to say that I consider that there is a proper ground which is arguable, that certification should not have been made in this case. Therefore I give permission to appeal in relation to the decision of Jay J to refuse permission to apply for judicial review, but only in relation to that certification issue.  
Order:  Application granted on the certification issue only.