Jamil Ahmed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Thirlwall,Lord Justice McCombe,Lady Justice Sharp |
| Judgment Date | 07 March 2017 |
| Neutral Citation | [2017] EWCA Civ 118 |
| Docket Number | Case No: C2/2014/1149 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2017 |
[2017] EWCA Civ 118
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Upper Tribunal Judge Gleeson
JR/2514/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice Sharp
Lady Justice Thirlwall
Case No: C2/2014/1149
Mr Basharat Ali (instructed by Aman Solicitors Advocates) for the Appellant
Mr John Paul Waite (instructed by Government Legal Department) for the Respondent
Hearing date: 7 th February 2017
APPROVED JUDGMENT
This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) of 12 th March 2014 refusing permission to claim judicial review of a decision by the Secretary of State for the Home Department (SSHD), set out in a letter dated 23 rd July 2013, refusing the appellant's application for leave to remain in the United Kingdom. Appeals by the appellant's wife and three adult sons were dependent on this appeal. The three sons now have leave to remain in the UK. Two daughters are settled in the UK; they are married to British citizens. The appeal proceeded on behalf of the appellant and his wife only.
The original grounds of appeals were expansive. Permission was granted on a single ground, that is whether in coming to her decision the Upper Tribunal judge failed to consider a relevant factor under Article 8 (this being a case where the appellant could not succeed under the Immigration Rules). The relevant factor is described on the appellant's behalf as an "historic injustice". It is the appellant's case that had the Upper Tribunal judge given proper consideration to that issue, she would have been bound to grant permission to claim judicial review and the Secretary of State would have been required in due course to reconsider the matter.
The grant of permission to appeal in February 2015 prompted the respondent to reconsider the appellant's position and a further decision letter was written on 6 th November 2015. As a result this appeal, listed for mid November 2015, was adjourned by consent. The appellant was given 28 days to review his appeal in the light of the letter. By paragraph 4 of the consent order it was ordered "if the appellant decides to pursue this appeal then he must file and serve amended grounds of appeal within 28 days of this order." The appeal is pursued. The document headed "Amended grounds of appeal" includes grounds for judicial review of the decision letter of 6 th November 2015. Those grounds were pursued in the amended skeleton argument.
I am satisfied that the grounds for judicial review of the decision of 6 th November 2015 are not arguable for the reasons I set out later in this judgment. A grant of permission to serve Amended Grounds of Appeal does not, in my view, include permission to serve grounds for a claim for judicial review in respect of a new decision, still less permission to argue those grounds. We considered the grounds so as to bring finality to litigation which has gone on for far too long but it should not be thought that this is the usual course. In this case it meant the time of the court was wasted considering unarguable grounds which had not previously been subject to the filter of permission. This is a road now very well and very recently travelled, see, in particular, the judgments of Underhill and Beatson LJJ in Caroopen and others v SSHD [2016] EWCA Civ 1307, in particular at paragraphs 54, 58, 92 and 93 of the judgments where it is observed that a pragmatic approach prevails in the Administrative Court notwithstanding judgments of this court deprecating "rolling judicial review" (see for example the decision of this court in R (Tesfay and others) v SSHD [2016] EWCA Civ 415 at paragraphs 76–83.
Where, rather than or in addition to seeking permission to amend grounds of appeal, a litigant may want to add a claim for judicial review in respect of a later decision this must be made clear to the judge being asked to grant permission to amend the grounds of appeal so that consideration may be given to whether the question of permission should be considered before the hearing of the appeal.
Facts
The appellant was born in Pakistan in 1961. He and his mother joined his father in this country in 1963. His two sisters were born here. According to the witness statement of Mr Mohammed, a family friend who lives in this country, the appellant's mother moved back to Pakistan with all the children in 1968. Another son was born shortly afterwards. The appellant's father, Mr Malik, remained in the North East of England where he had employment. In about 1972 the appellant's mother died. According to Mr Mohammed, the appellant's father sought and failed to bring his children back to the UK. Mr Mohammad recalls little of the detail of the proceedings but he remembers interpreting for Mr Malik when he saw his solicitors. He also recalls that neither the visa officer in Pakistan nor the courts accepted that Mr Malik was the father of the appellant or any of his siblings. Curiously in the original application for leave to remain the appellant's solicitors said that the siblings had successfully applied for entry clearance in 1972 and it was only the appellant who had been unsuccessful. Suffice it to say that there is no detail about what happened in 1972. There are no records. Whatever the position with his siblings the appellant did not come to the UK probably because it was not accepted that he was the son of Mr Malik.
The appellant's sisters returned to this country and are married to UK Citizens as is his brother who also lives here. The appellant grew up in Pakistan (it is not clear who brought him up), he ran his own business, married and had his children. His family life was entirely in Pakistan. In 2002, thirty years after the refusal to permit him to come to the UK, the appellant sought permission to visit the UK to attend the wedding of his cousin. The Entry Clearance Officer (ECO) in Islamabad refused him entry clearance on the grounds that he was not satisfied that the appellant was genuinely seeking entry for the purpose and period stated. The appellant appealed. Having heard evidence from his sponsor, the immigration adjudicator said (paragraph 21 of his decision) "I find as a fact that the decision of the respondent was not in accordance with the law and the rules and the appellant has shown on the balance of probabilities that at the date of the decision he could meet the requirements of the immigration rules HC395 paragraph 41". HC395, 41(1) requires that the applicant "is genuinely seeking entry as a visitor for a limited period as stated by him not exceeding 6 months". The appeal was allowed. In the course of later proceedings (see below) the appellant accepted candidly that his intention when coming to the UK at that time was to make a life here for himself and his family. It follows that he sought to deceive the Entry Clearance Officer, deceived his sponsor (or persuaded the sponsor to lie on his behalf) and thus deceived the adjudicator who allowed his appeal.
The appellant was given entry clearance as a visitor on 22 nd September 2002 and came into the country on 22 nd September. His visa expired on 1 st March 2003 and on 27 th March he applied for leave to remain and for a work permit. The application for a work permit was refused. For some years the appellant's wife and sons moved between the UK and Pakistan. On 16 th September 2004 the appellant, his wife and three sons applied for settlement in the UK. This was refused on 22 nd March 2006. The family appealed and the appeals were dismissed by Immigration Judge Aitken on 11 th May 2006. It was during the course of this hearing that the appellant accepted that when he entered the UK in 2002 he did so "with the intention of permanently residing in the United Kingdom and misled the Entry Clearance Officer in that respect". It appears that some time in the early 2000s the appellant produced DNA evidence that he was the son of Mr Malik. It was the appellant's case before IJ Aitken that he was a man of good character who worked hard to establish his business and family life in the UK. It was not suggested that there was any policy that the Secretary of State had breached in refusing leave to remain. A compassionate approach was urged upon the immigration judge. It was submitted "that there is a chance to put right the wrong of the earlier refusal by granting the appellant and his dependants leave to remain in the United Kingdom".
IJ Aitken recorded that until 24 th August 2002 there had been in place an Immigration Directorate's instruction relating to applications previously refused where the applicant was now over 18 and could establish a relationship by DNA. There...
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