Bidhan Kumar Dey v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Gill |
| Judgment Date | 30 August 2017 |
| Judgment citation (vLex) | [2017] UKAIT J0830-1 |
| Court | Asylum and Immigration Tribunal |
| Docket Number | Case No: JR/365/2017 |
| Date | 30 August 2017 |
[2017] UKAIT J0830-1
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Field House
15-25 Breams Buildings
London
EC4A 1DZ
Upper Tribunal Judge Gill
Case No: JR/365/2017
Mr J Mclanachan appeared on behalf of the Applicant
Mr J Lewis appeared on behalf of the Respondent
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UTJ
The applicant is a national of Bangladesh. He seeks permission to apply for judicial review of a decision of the respondent of 9 December 2016 by which she refused his application of 4 November 2016 for leave to remain as the dependent of his wife. By an application dated 9 December 2016, he varied his application, requesting indefinite leave to remain (ILR) on the basis of continuous lawful residence for a period of at least ten years.
The application is not included in the judicial review claim bundle. However, the letter dated 9 December 2016 from RMS Immigration Limited, which accompanied the application, is at A26-A27. The opening paragraph of this letter states that: 'We have been instructed by [the applicant] to make an application on his behalf for Indefinite Leave to Remain in the United Kingdomon the basis of his 10 years' continuous lawful residence in the United Kingdom of over 10 years'. The letter then goes on to request consideration under para 276A(a), 276 ADE(iii)-(vi) and 276B(ii)-(v). It also requests that the applicant be granted discretionary leave on exceptional and compassionate grounds with reference to the applicant's right to his private life under Article 8 of the ECHR.
At page 27, there is an explanation of the basis of the applicant's private life claim. The third para on page 27 sets out the factual scenario upon which the applicant relied in relation to his private life claim. This reads:
'Over the 10 years Mr Bidhan has spent a substantial and formative part of life in the UK. Since coming to this country he has been enjoying a stable life with relatives and friends he has made over the 10 years. He is extremely concern [sic] about his immigration status. There are many activities he wishes to engage in but he is unable due to present immigration status. He has sufficient funds and resources in order to maintain and accommodate himself without recourse to any public funds'.
The long residence application was refused on the following grounds:
(i) Firstly, it was said that as at the date of the application the applicant did not have 10 years of lawful residence. He entered the United Kingdom on 7 December 2006 with leave and remained lawfully until 23 July 2015, when his earlier application of 15 January 2015 for leave as a dependant of his wife was refused and certified as clearly unfounded.
(ii) Secondly, the decision-maker considered the long residence application under para 276B and concluded that the applicant's presence in the United Kingdom was not conducive to the public good because the Secretary of State was satisfied, based on information provided to her by ETS, that the applicant had fraudulently obtained an English language test certificate. The test in question was taken on 3 October 2012 at Eton College International. The decision-maker considered that by relying upon the fraudulently obtained test certificate, the applicant had used deception in his previous application of 15 January 2013.
The decision-maker concluded that the application for leave to remain on the basis of 10 years' lawful residence fell to be refused firstly because he did not have 10 years' lawful residence, and secondly and in any event he did not satisfy para 276B. The application was also refused under para 322(2) of the Immigration Rules.
The Secretary of State then considered the Article 8 claim outside the Rules and noted, inter alia, that the applicant had used deception as part of a previous immigration application.
The grounds and the renewed grounds were prepared by the applicant acting in person. On the hearing day, just moments before I came down to the hearing room to commence my list of permission applications, I was given a skeleton argument prepared by Mr McLanachan. I read the skeleton argument over the lunch adjournment. On re-convening the hearing at 2.15pm, I put to Mr McLanachan the following points:
(i) Para three of the skeleton argument asserts that the Secretary of State had not...
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