Farooqui (Claimant/Appellant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 24 June 2016 |
| Neutral Citation | [2016] EWCA Civ 908 |
| Docket Number | C2/2015/1751 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2016 |
[2016] EWCA Civ 908
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Sales
C2/2015/1751
Mr R Worthington (instructed by Herbertsmith Freehills) appeared on behalf of the Applicant
This is an oral application for permission to appeal in relation to a decision by Judge Barker QC, sitting as a Deputy Judge of the High Court, on 18th February 2015, whereby he refused permission to apply for judicial review of a decision of the Secretary of State refusing the application of the claimant, based on the immigration rules applicable at the time (specifically rule 276ADE(vi)), for leave to remain in the United Kingdom. On this application it is submitted that the judge was in error in refusing permission to apply for judicial review.
The claimant's date of birth is 29th November 1974. He is a citizen of Pakistan. The relevant rule in paragraph 276ADE provides as follows:
"276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: …
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."
The claimant was born in Pakistan but left it with his family at the age of 7 to go to live in Saudi Arabia. In Saudi Arabia he was educated at the Pakistan International School in Jeddah and it is accepted that he received an education there within the Pakistani educational system. He then worked for a period in Saudi Arabia and arrived in the United Kingdom as a student in about 1996. His leave to enter expired in 2003 and a subsequent application to extend it was rejected and his appeal in relation to that was similarly dismissed. It follows that although the claimant has been in the United Kingdom for a considerable time by now, that has been without leave to be here.
The position, so far as the present application is concerned, is that the claim is based squarely on the relevant paragraph in the immigration rules rather than more generally under Article 8 and, accordingly, it is the focus on the immigration rule which is important.
The claimant's application for leave to remain, based on paragraph 276ADE(vi), was refused by a Decision Letter of the Secretary of State, dated 20th June 2013. In relation to the question of ties with Pakistan the Secretary of State said that she was not satisfied that the claimant could meet the requirements of the rule:
"Although having only spent 7 years of your life in your home country you have stated within your application that you are a speaker of both Urdu and Punjabi, Urdu being the national language of Pakistan and Punjabi also being in common usage. It is also considered that having spent 14 years of your life living in Saudi Arabia, a country with a similar cultural heritage to that of Pakistan, you are well equipped to adapt to life in Pakistan. Therefore the Secretary of State is not satisfied that you can meet the requirements of the rule 276ADE(vi)."
Although that reasoning is exiguous, it is appropriate to bear in mind that the Secretary of State had before her the information about the claimant's Pakistani education received while living in Saudi Arabia as part of the background to his application.
The claimant applied for judicial review of the Secretary of State's Decision Letter. The learned judge addressed the question of social, cultural or family ties with Pakistan in paragraphs 7 and 8 of his decision as follows:
"7. The position in relation to Mr Farooqui's family as disclosed to the Secretary of State in a letter of 22nd February 2013 which was handed up during the hearing, is that Mr Farooqui's father is dead; his mother now resides with his sisters in Canada; and he has brothers who reside in the USA. So in terms of immediate family his immediate family are not resident within the UK or even proximate to the UK. Mr Farooqui does, it appears from that letter, reside with his uncle. Nothing is said as to parallel family relationships such as uncles, aunts or remote relatives, in Pakistan, in particular it is not said that there were no such relatives in Pakistan.
8. As to the social position, Mr Najib, who appears for the Secretary of State, has drawn attention to the fact that in this letter Mr Farooqui refers to having visited Pakistan on at least two occasions, something which is surprising for a person who professes to have no ties, whether social, culture, family or otherwise, with that country. Mr Najib for the Secretary of State accepts that the reasoning given by the Secretary of State could be more [fully stated] and urges on me that not only is it adequate but that this is the sixth occasion on which Mr Farooqui has made an application which has come before a court, raising human rights grounds and Immigration Rule grounds for staying, and on each of the previous applications Mr Farooqui circumstances have been considered and found wanting. This, Mr Najib submits, is relevant when the Upper Tribunal on this occasion has to consider whether, even if the reasoning of the Secretary of State is inadequate, the outcome would be different were leave given. In my judgment, the outcome of an application to Secretary of State, even if the want of social and family ties has been addressed, would not be different and could not be different because Mr Farooqui's close family are not within this jurisdiction and he has some ties which are at least social, if not also family, in Pakistan, as is evident from his visits to that country."
On those grounds the judge decided to refuse permission to apply for judicial review.
The application to this court was adjourned to allow both sides to put in additional documentation...
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