Guren Zhou v Secretary of State for the Home Department

Hearing dates: 24 January 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 7 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is an appeal against the decision of Upper Tribunal (‘UT’) Judge Frances, dated 22 July 2022, by which she refused the Appellants permission to apply for judicial review. By their application before the UT, the Appellants had sought to challenge decisions of the Respondent dated 28 July 2021 and/or 22 February 2022 deferring a substantive decision on their applications (dated 3 June 2021) for leave to remain in the United Kingdom. The First and Second Appellants are husband and wife; the Third Appellant is their daughter. They are all Chinese nationals. The appeal is brought with permission of Males LJ dated 24 July 2023.

The factual background

The First Appellant arrived in the United Kingdom from China in August 2005, with leave to enter until 2006. He was permitted to remain in this country under a sequence of subsequent permissions until April 2018. The Second Appellant joined him in 2010. The Third Appellant was born in China but has in fact lived in this country for most of her life. In March 2018, the First Appellant applied for indefinite leave to remain as a Tier 1 General (Migrant) Worker under the points based system; this application was refused. He applied for administrative review of that decision which was also refused. In 2019 he applied for judicial review of the decision, but this application was withdrawn by him in March 2020.

On the 24 March 2021, the First Appellant was arrested with others on suspicion of money laundering over an 18 month period; he was interviewed by the police. He was released pending further investigation and charging decision. He denies involvement in any wrongdoing.

On 3 June 2021, the First Appellant applied for leave to remain in the United Kingdom as a Tier 2 Skilled Worker (a financial analyst). I shall refer to this as the ‘June 2021 application’. He was sponsored by a financial services company which wished to employ him; the Second and Third Appellants simultaneously applied for leave to remain as the First Appellant's dependants. By this time, all the Appellants had been overstayers under the Immigration Act 1971 for many months; from June 2019 they were on immigration bail.

In response to that application, on 28 July 2021 the Home Office (Work Sponsored Routes Team) sent a communication to the First Appellant in these terms:

“Although we would normally decide your application within eight weeks from the date it was submitted, unfortunately this is not going to be possible in your case.

This is because records show that you have an outstanding criminal prosecution. No decision will be taken on your application until this matter has been concluded…” (Emphasis by underlining added).

It is now accepted by the Respondent that the Home Office team was wrong then to rely on an ‘outstanding criminal prosecution’ as a reason for deferring the decision; no charging decision had then (or indeed even now) been made in relation to the matters in respect of which the First Appellant had been arrested, and there was no outstanding or pending criminal prosecution. It is also clear (and rightly conceded on behalf of the Respondent in the UT) that the First Appellant's situation did not fall within the Home Office's ‘Impending Prosecutions’ Guidance (2016) (then in force). That guidance was supplemented by the Home Office's guidance ‘General Grounds for Refusal – Criminality’ of November 2021, and replaced in August 2022 by the Home Office's guidance ‘Pending Prosecutions’. In the response to the judicial review before the UT in 2022 the Respondent referred to this explanation for her decision as a “technical breach”, given that, irrespective of the import of the 2016 Guidance, there was and is in fact an outstanding criminal investigation, which she maintained gave her an implied power to defer determination of the application for leave to remain. I return to this later.

On 15 February 2022, the Appellants served on the Respondent a pre-application letter of claim. This provoked a reply on 22 February 2022 in these terms:

“… Although we would normally decide your application within eight weeks from the date it was submitted, unfortunately this is not going to be possible in your case. This is because your application raises exceptionally complex issues and we require further time to consider your case thoroughly and reach a decision.

I am sorry for the delay in dealing with your application and for the inconvenience this is causing. Please be assured that we are doing all we can to make a decision on your case as quickly as possible.

We expect to make a decision on your application by 5th April 2022, but we will write to you again if this is not going to be possible.” (Emphasis by underlining added).

On 4 April 2022, the Appellants issued proceedings for judicial review seeking to challenge the decisions of 28 July 2021 and 22 February 2022 “in the absence of a decision on their pending immigration applications”. The Respondent filed an acknowledgement of service and set out her grounds for contesting the claim.

On 10 May 2022, the National Crime Agency (‘NCA’) e-mailed the Respondent as follows:

“I can confirm that on the 10/05/2022 a case file … was submitted to [a] Senior Crown Prosecutor … for a decision to charge. This is regarding money laundering offences believed to have been committed by [the First Appellant] and others. After consultation with the Crown Prosecution Service (‘CPS’), a provisional date of late August 2022 was given for a decision to be made by the lawyer. Obviously this is subject to change and is dependent upon further consultations with the CPS and lawyers etc. A Released Under Investigation (RIU) letter will be sent in due course to [the First Appellant] and others … I am aware that this matter has taken some considerable time to reach this stage, but I am confident of a positive response from the CPS. Thank you for your patience in this matter and I will update as and when I am able”.

On 7 June 2022, UT Judge Sheridan considered the Appellants' application for permission to apply for judicial review on the papers. He refused it. The Appellants renewed their application for an oral hearing.

The Upper Tribunal's decision

Following an oral hearing on 22 July 2022, UT Judge Frances refused the Appellants' renewed application for judicial review. The order reads as follows:

“(1) The applicants challenge the respondent's ongoing failure to decide their applications for further leave to remain as a skilled worked and dependants made on 3 June 2021. The respondent wrote to the applicants on 28 July 2021 stating the applications would not be decided within the standard processing time of eight weeks owing to ‘an outstanding criminal prosecution’.

(2) It is not in dispute the applicants' leave to remain expired on 8 October 2018 and they have remained in the UK without leave since then. On 24 March 2021, the first applicant was arrested on suspicion of money laundering and released under investigation pending a Crown Prosecution Service charging decision.

(3) The alleged mistake of fact is not material given the respondent's guidance: ‘grounds for refusal criminality’ (the guidance) is not relied on by the respondent.

(4) Following R (on the application of X and others) v SSHD[2021] EWCA Civ 1480, the respondent has an implied power under the Immigration Act 1971 to defer, or delay, taking a decision on an application for leave to remain. The issue is whether that power had been exercised lawfully. I am not persuaded that this decision can be distinguished on its facts or on the basis the court did not consider the guidance.

(5) The investigation into money laundering offences is relevant to the first applicant's character and conduct. There is evidence that the investigation is ongoing and the case file has been submitted to the Senior Crown Prosecutor for a decision to charge.

(6) The application for further leave was made out of time. Any prejudice or detriment suffered by the second and third applicants as a result of being subjected to the ‘hostile environment’ was not caused by the respondent's delay. On the facts asserted, Article 8 is not engaged.

(7) The respondent's delay in taking a decision on the applications for leave to remain was not arguably unlawful or irrational.”

It is against this decision that the Appellants now appeal.

The application for permission to appeal was placed before Males LJ on 23 June 2023. Doubtless he was mindful of the indication from the NCA in May 2022 (see §9 above), so he directed the Respondent to file a statement in accordance with CPR PD52C.19 within 21 days, to advise whether the First Appellant had indeed been charged with any (and if so what) offence. On 17 July 2023, the Government Legal Department on behalf of the Respondent replied by letter:

“… the CID records, updated on 10 July 2023 states:- ‘Impending Prosecution’. Please do not casework, place case on hold new checks 6 weeks”.

The letter contained a request for more time to provide the key information, but in fact no further...