Boijoonauth v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Vos |
| Judgment Date | 27 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1324 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 October 2015 |
| Docket Number | C2/2014/2963 |
[2015] EWCA Civ 1324
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice McCombe
Lord Justice Vos
C2/2014/2963
Mr P Saini (instructed by Universal Solicitors) appeared on behalf of the Applicant
Mr M Gullick (instructed by Government Legal Department) appeared on behalf of the Respondent
The applicant applies for permission to appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber), in the person of the Upper Tribunal Judge Kekic, of 14th August 2014. By that decision the Tribunal refused the applicant permission to apply for judicial review of a decision of the respondent made on 26th June 2013, refusing the applicant's application for leave to remain in the United Kingdom on the basis of his relationship with Brindikalisetty Tomaia — at that time "Ms Tomaia", as we shall call her. There has since been a ceremony in marriage but I hope I will be forgiven for continuing to refer to her as Ms Tomaia as she was at the time of the relevant decisions.
The applicant claimed in the application to have met Ms Tomaia in March 2009, entering into an intimate relationship in June 2009 with her followed by a religious ceremony of marriage, according to Hindu custom, on 3rd November 2012.
The application to the respondent, based solely upon Article 8 of the European Convention on Human Rights outside the Immigration Rules, had been sent to the UK Border Agency under cover of a full solicitor's letter of 16th November 2012.
Application for permission to appeal was refused by the Upper Tribunal in its sealed order of 20th August 2014. The applicant's subsequent application to this court for such permission was adjourned by me by an order of 6th February 2015, to an oral hearing with representation on behalf of the respondent. I adjourned the application on one ground only and refused it on other grounds. The application on that one ground, which I call "the Chikwamba point" is now before us. The reference being to Chikwamba v Secretary of State for the Home Department [2008] UKHL 40.
The applicant was born on 8th April 1979 and is therefore 36 years old. He, like Ms Tomaia, is a national of the Republic of Mauritius. On 10th August 2006 he entered the United Kingdom lawfully as a visitor with leave to remain for 6 months. That limited leave expired in February 2007 and he has remained in the country unlawfully since then. Thus, his application for leave to remain made in November 2012 was made after nearly 6 years of unlawful presence here.
Ms Tomaia, it seems, at the time of the applicant's application for leave to remain, had leave to remain in the United Kingdom as a Tier 1 (general) migrant until February 2016, ie some two-and-half years ahead. It is said that she was also eligible by then for indefinite leave to remain, having completed 10 years lawful residence in the country. At the hearing before the Tribunal it was pointed out to the judge that there was a stamp in her passport that indicated that she had first entered the United Kingdom on 2nd July 2004. She had been in lawful and gainful employment in the United Kingdom as an accountant, earning a salary of some £37,000.
The respondent's officials initially considered the application under the rules, (though clearly not applicable in this case) to grants of leave to remain with a partner to be found in appendix FM to the Immigration Rules. However it was stated in the Decision Letter that the applicant could not satisfy those criteria because, of course, Ms Tomaia (the partner) was not a British citizen, was not settled in the United Kingdom or nor did she have refugee leave or humanitarian protection rights. Further, it was found that the applicant's removal from the United Kingdom would not breach his rights to private life under Article 8 of the European Convention on Human Rights as expressed at that time in rule 276 of the Immigration Rules, the matter being put this way in the Decision Letter:
"At the time of your application you were aged 33. You were not under the age of 18 years or between the ages of 18 and 25 and therefore the Secretary of State is not satisfied you can meet the requirements of rule 276ADE (iv) and 276ADE (v). You have spent over 26 years of your life living in Mauritius and in the absence of any evidence to the contrary it is not accepted that in the period of time you have been in the United Kingdom you have lost ties to your home country. Therefore the Secretary of State is not satisfied that you can meet the requirements of rule 276ADE (vi)."
It was also said that consideration had been given as to whether the application contained any "exceptional circumstances which consistent with the right to respect private and family life contained in Article 8… might warrant consideration by [I interpolate, "the respondent"] of a grant of leave to remain outside the requirement of the Immigration Rules." It was decided it did not.
It is not necessary now to dwell upon a further argument raised and dealt with in the letter under Article 3 of the Human Rights Convention, which is no longer pursued.
As indicated the applicant sought judicial review of that decision.
The written grounds of review took two points (a) the respondent had applied paragraph 276ADE of the Immigration Rules without independent consideration of Article 8 itself and (b) paragraph 276ADE was ultra vires the Immigration Act 1971 which, it was argued, had been impliedly and repealed by the Human Rights Act of 1998.
We have a transcript of the short argument addressed to Judge Kekic on 14th August 2014 when the applicant's application for judicial review came before her. Mr Saini for the applicant argued that the respondent had failed to take lawful account of Article 8, including the circumstances of the applicant on return to Mauritius, and, as he put it, the permanence or semi permanence of Ms Tomaia's status in this country. He referred to the covering letter sent by his instructing solicitors on 16th November 2012, which I have already mentioned. He submitted as "a final point" that the respondent ought to have considered the application on the the basis of the applicant as a dependent partner under the rules relating to Tier 1 migrants. He further submitted that whilst the applicant's application had been made at an earlier point Ms Tomaia now had 10 years' lawful residence behind her and would shortly be making an application for leave to remain. Mr Saini asked the Tribunal "to take a pragmatic view of the fact that matters have now moved on, just to bear it in mind when considering this application." It was argued by Mr Saini that the respondent should have borne in mind that while Ms Tomaia did not have settled status she was "on the cusp of achieving it."
It was submitted that the Decision Letter should have contained a "reasoned analysis", of what lay outside the Immigration Rules themselves and should have taken account of a subsisting 4 year relationship between the applicant and his partner and whether it was reasonable or proportionate for Ms Tomaia to abandon her limited leave and the prospect of permanent status here.
An argument was also raised in the initial grounds of appeal about whether or not the Tribunal had properly considered whether to give counsel for the respondent the opportunity to address the Tribunal in view of the acknowledgement of service having been produced late. But that was only mentioned "on an administrative basis", as Mr Saini put it. It was pursued in the grounds of appeal originally served or at least in the skeleton argument. It seems to be a...
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