Iftikhar Ahmed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 14 February 2014 |
| Neutral Citation | [2014] EWHC 300 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1765/2013 |
| Date | 14 February 2014 |
[2014] EWHC 300 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr Justice Green
Case No: CO/1765/2013
Emma Rutherford (instructed by Hasan Solicitors) for the Claimant
Claire Van Overdijk (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 4 th February 2014
Approved Judgment
(1) The Application
This is an application for judicial review of decisions of the Secretary of State for the Home Department ("SSHD" or the "Defendant") refusing the Claimant's application for leave to remain in the United Kingdom. It concerns spousal rights and the circumstances when an applicant who fails to adhere to the basic requirements in the Immigration Rules should nonetheless be entitled to rely on Article 8 to found a basis to remain. It focuses upon the nature and operation of the so-called two part test for the evaluation of Article 8 type considerations within the context of immigration law. In addition it examines the scope of the concepts of "precarious" rights and "insurmountable obstacles". In addition it addresses the relevance of "inadvertent errors" on the part of applicants as an Article 8 consideration.
(2) The facts
(i) The Claimant
The Claimant is a citizen of Pakistan. He arrived in the United Kingdom on 5 th November 2005 as a spouse of a person settled and present in the United Kingdom and was given leave to remain until 24 th October 2007. On 9 th October 2007, prior to expiration of his permitted period, he applied for leave to remain upon the same basis, namely that he was a spouse of a person with a settled right to remain. That application was granted until 19 th October 2009. At that point in time the Claimant should either have left the United Kingdom or applied to extend his stay lawfully.
No new application was made until 13 th June 2012. The explanation given is that the Claimant had overlooked the fact that his leave granted in 2007 was only temporary (until 2009) and not permanent. It is explained that he discovered his mistake in January 2012 and in order to increase his prospects of obtaining leave to remain he embarked upon a Entry Level Certificate in ESOL Skills for Life Course. He obtained that certificate on 24 th April 2012 but the award was, however, not an award from an establishment recognised by the UK Border Agency ("UKBA").
(ii) The first decision: 13 th November 2012
On 13 th June 2012 the Claimant, as already observed, submitted a new application for leave to remain in the United Kingdom as a spouse of a person present and settled in the United Kingdom. That application was refused on 13 th November 2012. The basis of the refusal decision was, in summary, that under the rules, a right to remain would be considered only in favour of a person who: (i) had a limited leave to enter or remain at the time of the application; (ii) had not remained in the UK in breach of the Immigration Rules; and (iii) had provided an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State (unless certain circumstances apply which do not arise on the facts of the present case).
In addition the Defendant explained that she had considered the matter under Article 8 ECHR in relation to the claim for family life. The Defendant found that there were no family life grounds which were relevant to the Claimant as that policy was applied under Appendix FM Ex.1 of the Immigration Rules. In particular the Defendant stated that the Claimant did not have any British children and there were no insurmountable obstacles as to why the Claimant and/or his partner could not pursue a family life in the Claimant's home country, namely Pakistan. Further, there were no private life grounds under Article 8 which were relevant in the Claimant's favour as that policy was applied under paragraph 276 ADE of the Immigration Rules. In particular the Defendant recorded that the Claimant had entered the United Kingdom in 2005 and could not show that he did not have any social or cultural ties in his home country, i.e. Pakistan.
(iii) The application for permission to apply for judicial review
In view of this refusal the Claimant applied for permission to apply for judicial review of the Defendant's decision. There were six principal bases upon which the application was founded which I summarise as follows. First, the Defendant was bound to consider Article 8 outside of the Rules in the light of MF Nigeria [2012] UKUT 0093, and Izuazu [2013] UKUT 00045. Secondly, this was very important in cases where there was no right of appeal against the Defendant's decision. Thirdly, in the circumstances the Defendant had acted unlawfully by failing to consider either the Claimant's rights or those of his wife. Fourthly, the Defendant had erred in applying the insurmountable obstacles or exceptionable circumstances test as opposed to a proportionality test. Fifthly, the test was whether it was reasonable in all the circumstances to allow the Claimant to remain and this had not been applied. Sixthly, as to reasonableness the fact that the relationship of the husband and wife was a genuine and subsisting one was of great importance and had been accorded insufficient weight and the fact that the Claimant had made genuine errors in overstaying his permission and in failing to obtain an English language certificate from an approved body was unfortunate but these were errors which should not count against him.
The Defendant served Summary Grounds of Defence on 3 rd April 2013. Permission, however, was granted to apply for judicial review on 20 th June 2013.
(iv) The second Decision letter: "The August 2013 Decision".
On 2 nd August 2013 the Defendant issued a second Decision. For the purposes of this application it is this Decision that now contains the full reasoning of the Defendant. In this the Defendant explained that the Claimant's case had been reviewed by reference to the Claimant's particular facts but that the decision to refuse leave to remain had been maintained. The reasons given may be summarised as follows.
First, the Claimant's application was made as a person without a lawful right to reside since he had overstayed his earlier grant which had expired on 19 th October 2009.
Secondly, the English language test certificate supplied by the Claimant was not sufficient in that it did not emanate from an approved source.
Thirdly, the Claimant's case had now been considered under a proportionality test as laid down in Appendix FM of the Immigration Rules. In this regard the following facts and matters had been taken into consideration:
i) The fact that the Claimant and his wife did not have children.
ii) The fact that there were no insurmountable obstacles to the Claimant and his wife continuing a family life in Pakistan bearing in mind that the Claimant's wife had lived most of her life outside of the United Kingdom and the fact that the Claimant had likewise lived most of his life in Pakistan.
iii) The fact that neither the Claimant nor his wife had employment nor owned property in the United Kingdom.
iv) The fact that the Claimant, having overstayed his permit, "should have been aware" that he had no legal right to remain and could be asked to leave at any point in time and that this would impact upon his family life in the United Kingdom.
v) The conclusion that for the Claimant and his wife living in the United Kingdom was merely a preference to living in Pakistan but that no evidence had been advanced to establish that there were any problems in relation to relocating back to Pakistan.
vi) The fact that the Claimant had produced no evidence that he had no ties, including cultural or family ties back in Pakistan.
Fourthly, having considered all of these facts and matters under the proportionality heading the Secretary of State then proceeded to consider, in paragraphs 21 and 22 of the August 2013 Decision, whether there were any exceptional circumstances and she considered that there were none. Paragraph 21 has been subjected to particular criticism by the Claimant. It is in the following terms:
"21. I have considered whether the particular circumstances set out in your client's application constitute exceptional circumstances which, consistent with the right to respect a private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that they do not, because it took your client over two years to attempt to regularise his stay in the United Kingdom after his previous leave to remain expired. Your client claims this was an oversight on his part as he thought he had indefinite leave to remain. However, it was your client's responsibility to ensure that he was aware of the conditions of his stay in the United Kingdom, and to make sure that he remained here lawfully at all times".
In paragraph 23 of the Decision the Secretary of State stated that she did not consider that the Claimant's obligation to return to Pakistan was disproportionate "…to the permissible aim of maintaining an effective immigration control".
(v) The reformulation of the Claimant's Grounds
In the light of this the Claimant has refined his arguments. This was necessary since the August 2013...
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