Hirenkumar Mahendrabhai Patel (1) Alpa Hirenkumar Patel (2) and Another v The Secreatary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr John Howell QC |
| Judgment Date | 24 July 2012 |
| Neutral Citation | [2012] EWHC 2100 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3686/2010 |
| Date | 24 July 2012 |
[2012] EWHC 2100 (Admin)
Mr John Howell QC
Sitting as a Deputy High Court Judge
Case No: CO/3686/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Duran Seddon (instructed by the Joint Council for the Welfare of Immigrants) for the Claimants
Mr Gwion Lewis (instructed by the Treasury Solicitor) for the Defendants
Hearing dates: 15th June and 5th July 2012
In April and November 2006 the Secretary of State made changes to the rules governing the Highly Skilled Migrant Programme. Subsequently those changes were each held to be unlawful by this Court on the ground that, without any sufficient justification, they would frustrate the legitimate expectation of those who had been admitted to the Programme before the changes were introduced. Their expectation had been that they would be able to obtain further leave to remain, and then indefinite leave to remain, in the United Kingdom in accordance with the terms of the Programme when they were admitted to it.
Those who had been admitted to the Programme before April 2006 were required to have spent a continuous period of four years with leave in this country and to have met certain other conditions before they became eligible for indefinite leave to remain. Following the changes made unlawfully in April and November 2006, some migrants decided to make their home elsewhere. This claim for judicial review seeks to impugn (in this case and more generally) the Secretary of State's response to an application for indefinite leave to remain made by an individual who would by then have spent the requisite period in the United Kingdom but for his reaction to the changes to the Programme which the Secretary of State had sought to introduce unlawfully.
The Claimant contends that he has been unlawfully refused indefinite leave to remain in this country by the Secretary of State since that is what his legitimate expectation entitled him to in the circumstances. But he further contends that he was entitled to be granted indefinite leave to remain, since the Secretary of State was responsible for the fact that he did not meet the conditions for its grant and since she has waived the need to meet them in other cases.
The latter contention raises three general issues of public law:
(1) when a decision maker has taken a decision unlawfully which will frustrate an individual's legitimate expectation that he will receive a substantive benefit on the satisfaction of certain conditions, what obligation (if any) has that decision maker to provide such an individual with that benefit subsequently, and when may he refuse to do so, if the reason why that individual may not then satisfy those conditions is the action which he reasonably took to mitigate potentially adverse effects on him of the decision maker's unlawful decision?
(2) when a decision maker considers the case of those who took steps to mitigate potentially adverse effects on them of his earlier unlawful decision which would have frustrated their legitimate expectation of a substantive benefit, on what basis may the decision maker distinguish between them in his treatment of them? and
(3) in each case what role has the court in reviewing the legality of the decision maker's actions or lack of action.
In considering the Claimant's case I will need to consider what is involved in a complaint that a decision is so unfair as to amount to an abuse of power and how the Court addresses such a complaint. Such a complaint may be raised in a number of contexts. In this case submissions have been made that it provides the test for (a) whether or not a legitimate expectation has been frustrated unlawfully, (b) whether or not any response of the decision maker to having previously acted unlawfully is itself unlawful and (c) whether or not a different response to those in what are alleged to be similar situations is unlawful.
In addition to these more general issues, I will also need to consider the further complaints made by the Claimant in this case that the Secretary of State has failed unlawfully to have regard to certain aspects of the Claimant's case or has failed unlawfully to give any reasons why those did not provide a sufficient reason for the Clamant to be granted indefinite leave to remain.
For the sake of simplicity I shall refer in this judgment to the First Claimant, Mr Hirenkumar Mahendrabhai Patel, as "the Claimant", although his wife Mrs Alpa Hirenkumar Patel and their daughter, Miss Akanksha Patel, are also Claimants and the relief sought relates to them collectively. Similarly, for the sake of simplicity, I shall refer to the Secretary of State as "she", even on those occasions when the relevant Secretary of State was a man.
BACKGROUND
In order to understand the issues and the submissions made, however, it is first necessary to describe in some detail the Highly Skilled Migrant Programme; the previous decisions of this Court that the changes made to it by the Secretary of State were unlawful and the Secretary of State's response to those decisions contained in two policy documents. I shall then describe the Claimant's reaction to the changes that the Secretary of State introduced and the decisions on his application for indefinite leave to remain that he impugns.
(i) the HSMP
The Highly Skilled Migrant Programme ("HSMP") was introduced as a policy outside the Immigration Rules in January 2002. Its aim was to encourage individuals with the skills and experience required to enable the United Kingdom to compete in the global economy to come to the United Kingdom without any prior offer of employment. It was designed to provide them with an avenue to "settlement" in the United Kingdom. The scheme provided for leave to enter to be granted for an initial period of one year, followed by an extension for three years. After four years an individual would qualify for indefinite leave to remain ("ILR"). The spouse or unmarried partner of the migrant and dependent children under 18 would also be able to obtain ILR. Prospective candidates were informed that the programme would be reviewed on a regular basis and that the qualifying criteria might be adjusted from time to time. The Government also confirmed that it retained the right to suspend or to close the programme on an indefinite basis in connection with future applications for permission. The guidance issued stated, however, that "should this occur those already in the United Kingdom, as skilled migrants, will continue to benefit from the programme's provisions."
The scheme was introduced into the Immigration Rules with effect from April 1 st 2003. In order to obtain leave to enter for a period of up to twelve months, an applicant whose skills qualified him for entry under the HSMP needed also to demonstrate that he was willing and able to make the United Kingdom his main home and that he was able to maintain and accommodate himself and any dependent adequately without recourse to public funds: see paragraph 135A(i)-(iii) of the Immigration Rules.
If those criteria were still met he could apply for an extension of his stay if he had already taken all reasonable steps during his period of leave to become economically active lawfully in the United Kingdom: paragraph 135D of the Immigration Rules. Such an extension could be granted for a period not exceeding three years: see paragraph 135E.
Paragraph 135G of the Immigration Rules provided that
"Indefinite leave to remain may be granted, on application, to a person currently with leave as a highly skilled migrant, provided that he:
(i) has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom in this capacity, or has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom which includes periods of leave to enter or remain granted under paragraphs 128 to 319 of these Rules; and
(ii) for the period of leave as a highly skilled migrant, has met the requirements of paragraph 135A (i)-(iii); and
(iii) for any period of leave not in this capacity, has not had recourse to public funds; and
(iv) is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both."
Paragraph 135H provided that ILR was to be refused if the Secretary of State was not satisfied that each of the requirements of paragraph 135G was met. But paragraph 135G did not provide that ILR was to be granted if the Secretary of State was satisfied that those requirements were met. It gave the Secretary of State discretion to grant it.
How the Secretary of State proposed to exercise that discretion was indicated in guidance she issued. The Guidance issued in October 2003 stated that:
"If you have been granted permission to stay in the United Kingdom as a Highly Skilled Migrant for four years and wish to remain on a permanent basis you can apply at the end of the four year period for permanent residence. This is otherwise known as indefinite leave or settlement…The main criteria for settlement will be that you have spent a continuous period of four years in the UK (except for trips abroad of three months or less, totalling less than six months in the four year period) in a category leading to settlement and that you continue to be economically active in the UK as a highly skilled migrant."
It may be noted that at this stage the...
To continue reading
Request your trial
-
R(KBL) v SSHD and Ors
...to those principles that cases such as the present must be judged.” 89 In R (Patel) v Secretary of State for the Home Department [2012] EWHC 2100 (Admin), Mr John Howell QC (sitting as a Deputy High Court Judge) found unlawfulness by reason of failing to provide a ‘rational reason’ for tre......
-
R S v Secretary of State for Foreign, Commonwealth and Development Affairs
...to those principles that cases such as the present must be judged.” 81 In R (Patel) v Secretary of State for the Home Department [2012] EWHC 2100 (Admin), Mr John Howell QC (sitting as a Deputy High Court Judge) found unlawfulness by reason of failing to provide a ‘rational reason’ for tre......
-
Petition Of Dm For Judicial Review
...the Home Department [2007] EWCA Civ 546, per Carnwath LJ at paragraph 46; Patel and Ors v Secretary of State for the Home Department [2012] EWHC 2100 (Admin), at paragraph 85 et seq.; EU (Afghanistan) and Ors v Secretary of State for the Home Department [2013] EWCA Civ 32, per Sir Stanley B......
-
R Belkevich v Secretary of State for the Home Department
...of the subsequent cases in the Court of Appeal considering that case, in Patel and Ors v Secretary of State for the Home Department [2012] EWHC 2100 (Admin) at paragraph 85 and following. For present purposes, it is sufficient to refer to R(S) v Secretary of State for the Home Department [2......