AL-Hassan v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mark Warby |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWHC 3124 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2013 |
| Docket Number | CO/13216/2012 |
[2013] EWHC 3124 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mark Warby QC
(Sitting as a Deputy High Court Judge)
CO/13216/2012
Mr A Mustakin (not instructed by solicitors) appeared on behalf of the Claimant
Mr R Moules (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is a renewed application for permission to apply for judicial review, permission having been refused by His Honour Judge Bidder QC on 30 April 2013.
The claimant is a national of Bangladesh who seeks to challenge the conduct of the defendant in respect of an application for further leave to remain in the United Kingdom. The target of the challenge — it is now evident, although it was not always clear — is a decision made on 21 September 2012 to refuse an application made by the claimant on 25 June 2011 for further leave to remain.
That application was for further leave to remain as a spouse, and the claimant says he married, and it was assumed for the purposes of the decision letter that he did, in April 2011, shortly before the application in question.
Prior to that, he had enjoyed leave to remain in the United Kingdom but not, on the chronology, since November 2008.
The relevant chronology is, in summary, as follows. The claimant entered the UK with leave to remain in 2003. That leave continued until 31 January 2006 and was extended for 10 months until 31 October 2007, but his leave to remain expired in November 2008, from which point he was an overstayer. He became appeal rights exhausted in 2010. In September 2010, he applied for leave to remain as an unmarried partner, and that was rejected and it was renewed and rejected again. He was then issued with a certificate of approval for marriage in the United Kingdom, and on 25 March 2011, he was issued with notice of liability for removal, according to the chronology.
The claimant through his counsel today, Mr Mustakin, and indeed in a reply to the acknowledgement of service and summary grounds of defence, disputes that he ever was served with that notice, an IS 151A. Counsel for the Secretary of State told me today that, in those circumstances, the Secretary of State would not seek to rely upon that notice of liability for removal in relation to any further steps that may be taken in respect of this claimant.
It was after the date of the notice of liability for removal that the claimant says he married a partner on 14 April 2011. He then made his application on 25 June 2011 for leave to remain, which was disposed of by refusal on 21 September 2012.
The decision notice was essentially in three parts. It dealt with leave to remain by reference to the Immigration Rules in force at the time of the application, paragraphs 286 and 284, and concluded that the requirements of those provisions were not met, so that the Secretary of State had to refuse the application for leave. It went on to consider first the claimant's family life rights, and separately his private life rights, under Article 8, by reference to the new rules which came into force on 9 July 2012.
The grounds of review that were originally advanced were under two heads. First there was a complaint about the Secretary of State's reliance on the new Immigration Rules of 9 July 2012, even though the application was lodged before that date. Secondly, it was said that the defendant had acted unreasonably and unlawfully in failing to make an appealable immigration decision at the time that she refused the application for leave to remain. In essence, that second ground appears to be a complaint of failure to make a decision to remove the claimant from the United Kingdom so that he could appeal against it as an immigration decision.
The new rules point was dealt with by His~Honour Judge...
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