News

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:

1. the impact on the child’s private life of removing him from the intensive professional support network which he already has in the UK; and


2. the availability and accessibility (in practical terms) of adequate educational and medical support in Pakistan.

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:

1. The material evidence that supported the appellants’ contention that appropriate medical and educational care would be physically and financially available to the child in Pakistan without undue delay.


2. The material evidence about the stigmatisation of people with autism in Pakistan.

The Court also agreed that there was an important point of principle or practice to be considered in relation to the approach to the Article 8 rights of a child with a development difficulty (ASD) at what is a crucial stage of their treatment and need for support.

It is likely that the decision of the UT refusing permission to appeal will now be quashed and a new decision will need to be made, pending which the appellants cannot be removed.

A Note on Funding

Cart Judicial Reviews are notoriously difficult to win and it is a struggle to get public funding. As a result, many lawyers simply will not bring such challenges.

In this case, the Legal Aid Agency (LAA) initially refused the appellants’ application for funding for the Judicial Review. It was only granted on appeal but after the substantive work had already been completed within the 16 days’ time limit to issue proceedings, in order to protect the appellants’ position. When the High Court refused to give permission to judicially review, the LAA refused to grant funding for the appeal to the Court of Appeal on the basis that there were insufficient merits in the case. Both counsel and the firm acted in both the High Court and Court of Appeal without funding because we believed in the strength of the case, and the Court of Appeal’s decision has ultimately vindicated our position.

Representation

The appellants are represented by Fahad Ansari, an immigration consultant solicitor at Duncan Lewis, with David Chirico of 1 Pump Court Chambers acting as Counsel.