On 25 February 2019, in the case of RS (Pakistan) and Ors v HMCTS and SSHD (as an Interested Party), the Court of Appeal granted the appellants permission to appeal against the decision of the High Court refusing to grant them permission to judicially review the decision of the Upper Tribunal (UT). The UT in turn had refused to grant permission to the appellants to appeal the decision of the First-tier Tribunal (FtT) dismissing their human rights appeals in August 2017. It follows that the decision of the UT refusing permission to appeal is now likely to be quashed and a new decision will need to be made. The Court of Appeal also ordered that the appellants were not to be removed in the interim.
Case History
The appellants in this matter are a Pakistani family of four, including a five year old child with Autism Spectrum Disorder (ASD) who was born in the UK. In November 2016, the family made a human rights claim arguing that that their removal to Pakistan would interfere with their family and private life rights in breach of Article 8 of the European Convention on Human Rights. This was because the child with ASD was receiving significant educational support and supervision in the UK. Medical evidence confirmed that he was at a “very crucial point” with his ASD and that his development would be adversely affected by “change and transition.”
The primary issues for the FtT to determine were:
Despite the material evidence submitted in support of the appellant’s position, including expert evidence from Pakistan, the FtT dismissed the appeals. After the UT refused to grant permission to appeal against that decision, we were compelled to issue judicial review proceedings in the High Court against the UT.
Any judicial review of the UT, commonly referred to as a ‘Cart’ JR, requires applicants to satisfy the ‘second appeals’ test, meaning that the claim must raise an important point of principle or there must be some other compelling reason to allow the claim to continue.
It was argued that the important point of principle or practice raised was the approach, in the Article 8 context, to a claim involving a child with developmental disability who is at a crucial stage in his/her treatment or support.
It was additionally argued that there were compelling reasons to allow the claim to continue namely the “dire consequences” for the family if the FtT decision was wrong.
The High Court refused permission on all grounds and an application for permission to appeal to the Court of Appeal was lodged.
Court of Appeal Judgment
The Court of Appeal found that there was a realistic prospect of showing that material errors of law had taken place. These included the Tribunal’s failures to have regard to: