JH (Zimbabwe) v Secretary of State for the Home Department

Lord Justice Moses:

1. This is an application for permission to appeal following refusal in writing by Maurice Kay LJ. I agree with Maurice Kay LJ that the Senior Immigration Judge, in his determination of 22 June 2006, was correct in identifying errors of law in Immigration Judge Parkes’ determination of 1 August 2005.

2. He determined that whilst Mrs H, from Zimbabwe but married to a United Kingdom citizen, could not invoke the immigration rules (paragraph 284 of HC 395), nevertheless her case was so exceptional that she could not be expected to return either to Zimbabwe or another country and make an application for entry clearance to join her husband; as I have said, a United Kingdom citizen.

3. In order to bring herself within the circumstances identified in Huang 247 2205 INLR, the appellant had to show that the need for her to care for her husband, in his poor health as he undoubtedly was, was so pressing as to entitle her to say that her circumstances were sufficiently exceptional.

4. The Immigration Judge found that they were, but the only fact that he found in support of that conclusion was, besides the undisputed deterioration of the health of her husband, the fact that there was no guarantee that the daughters who hitherto had been looking after him would be willing or inclined to do so in the future; see paragraph (k) of that determination.

5. In my judgment, the Senior Immigration Judge correctly regarded that as an error of law. There were simply no sufficient facts found to support any such conclusion that the mere fact that there was no guarantee that the daughters would continue to look after him would mean that he would be left with no other source of support other than his wife.

6. In those circumstances I refuse permission to appeal on the basis that the Senior Immigration Judge erred in law in identifying an error of law. It does not seem to me that there is any reasonable prospect of succeeding to establish the contrary.

7. However, the matter does not stop there. Having identified the error of law, the AIT regarded itself as bound by JM (Liberia) [2006] UKIAT 0009, in which the tribunal had held that it was not open to them to determine an allegation of a breach of human rights whilst no removal directions had been issued. This court, in the same case, [2006] EWCA Civ 1402 , concluded that that was wrong and it was incumbent upon the AIT to determine, whether there had been a breach, whether or not removal directions had been made (paragraph 28).

8. Since the AIT failed to do that in this case, it is inevitable that permission must be granted so that it can be considered whether the matter should be remitted to the AIT to consider of itself the assertions made of a breach of Article 8. I am only concerned with granting permission, but I do now urgently hope that there will be no need for a full appeal, because it seems to me inevitable that following the decision of this court in JM , the matter will have to be remitted to the AIT. I hope that urgent consideration will be given to what I have said and the need for a full appeal will be obviated.

9. For that particular reason I grant permission to appeal, refusing it on the other ground for the reasons I have already given. Order: Application granted.