JS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 09 February 2021 |
| Neutral Citation | [2021] EWHC 234 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2230/2020 |
| Date | 09 February 2021 |
[2021] EWHC 234 (Admin)
Mr Justice Chamberlain
Case No: CO/2230/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Raza Husain QC and Eleanor Mitchell (instructed by Duncan Lewis Solicitors) for the Claimant
Julia Smyth (instructed by Government Legal Department) for the Defendant
Hearing dates: 2 February 2021
Approved Judgment
Introduction
This is a renewed application for judicial review, permission having been refused on the papers by Farbey J on 15 December 2020. The decision challenged is the “ongoing decision” reflected in paragraphs 352A to 352F of the Immigration Rules and in a policy document entitled Family reunion: for refugees and those with humanitarian protection (version 4.0), published on 9 January 2020. Together, these provide a route for an adult refugee in the UK seeking reunion with a child or partner abroad, but no equivalent route for a child refugee in the UK seeking reunion with a parent or sibling abroad.
The effect of the challenged policy is that, whereas family reunion is routinely permitted in the first kind of case, applicants in the second kind of case face the more difficult task of showing why, exceptionally, their application should be granted outside the Immigration Rules, normally on the basis that this is required by Article 8 of the European Convention on Human Rights (“the Convention”).
The Secretary of State acknowledges that the situations are treated differently and avers that this is so for good reason. The main reason advanced is that providing a route for children in the UK to bring in their parents and siblings would risk encouraging families to send children ahead to act as an “anchor” for their own applications to enter, thereby subjecting the children to danger. The Claimant responds that there is no reliable evidence that the opening of a route to family reunion for child refugees in the UK would have that effect.
There are at least two other cases currently before the Administrative Court which raise the same points.
The chronology up to issue of the claim
The claimant, JS, was born on 21 March 2002. He is a national of Afghanistan. He arrived in the UK on 6 April 2016 as an unaccompanied minor and claimed asylum. His claim was refused by the Secretary of State on 6 October 2016. His appeal was dismissed by the First-tier Tribunal on 6 March 2017. On 26 June 2017, he submitted a fresh claim pursuant to paragraph 353 of the Immigration Rules. This was refused by the Secretary of State on 15 February 2018 without an in-country right of appeal. A claim for judicial review of that decision failed. JS made a further fresh claim on 27 June 2019. This was refused on 9 August 2019, this time with an in-country right of appeal. That was heard in the FTT on 24 October 2019 and allowed on 18 November 2019. JS was granted asylum on 24 December 2019, but the grant was not communicated until 9 January 2020.
By this time, JS's mother and two younger brothers had also fled Afghanistan and were living in Iran without status. On 16 January 2020, JS instructed his current solicitors, Duncan Lewis, to assist with an application for family reunion so that his mother and brothers could join him in the UK. On 19 March 2020, they wrote to the Secretary of State asking how entry clearance applications should be made, explaining that JS's family were unable to submit an application via the visa application centre (“VAC”) in Iran, because it had been closed due to the COVID-19 pandemic since 3 March 2020. On the following day, 20 March 2020, Duncan Lewis sent by post to the Secretary of State an application for entry clearance on behalf of his mother and brothers. They say they did this because of the closure of the VAC in Iran, local restrictions which made travel to other countries impossible and the lack of any Home Office guidance about alternative methods of application. It was also necessary to submit the application urgently because JS would turn 18 on the following day.
At the same time as submitting this application, Duncan Lewis also sent a letter under the Pre-Action Protocol giving notice of an intended challenge to the Secretary of State's policy of denying refugee children a route to family reunion under the Immigration Rules when such a route is available to adults.
The Secretary of State responded to the letter before claim on 16 April 2020 saying that the application for family reunion was invalid as it should have been made online and that the grounds for challenging the policy therefore fell away.
Duncan Lewis sent a further pre-action letter on 1 May 2020 taking issue with the Secretary of State's position on the family reunion application. After some further correspondence, the Government Legal Department responded substantively on 21 May 2020, thanking Duncan Lewis for bringing to the Secretary of State's attention the practical problems with submitting family reunion applications in Iran during the pandemic, offering a justification for the challenged policy and noting that, where a family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are exceptional circumstances or compassionate factors which may warrant a grant of leave outside the Rules.
Duncan Lewis responded by return, on 21 May 2020, asking for urgent confirmation that JS's application for a family reunion would be considered under Article 8 of the Convention. There was no reply to that letter. The claim for judicial review was filed on 20 June 2020. It challenged the policy of not permitting family reunion applications from children save in exceptional cases. The challenge was on two grounds; first, breach of s. 55 of the Borders, Citizenship and Immigration Act 2009; and second, incompatibility with Article 14 read with Article 8 of the Convention.
The post-issue chronology
In the Secretary of State's Summary Grounds of Defence dated 10 August 2020, it was noted that JS was an adult when the claim was issued, though the Statement of Facts and Grounds had not made this clear, and that there was no valid application for family reunion at the time when the claim was made.
In response, JS applied to amend the Statement of Facts and Grounds. There were two material changes: first, to add a third ground – irrationality; and second, to add to the relief sought a mandatory order that the Secretary of State consider and determine the application made on 20 March 2020.
On 4 September 2020, Cavanagh J granted permission for these amendments and permitted the Secretary of State to make consequential amendments to her Summary Grounds of Defence. In the Amended Summary Grounds of Defence of 11 September 2020, it was noted that there was no pleaded ground challenging the Secretary of State's decision to treat the 20 March 2020 application as invalid.
That prompted an application by JS on 15 September 2020 to re-amend the Statement of Facts and Grounds and a Reply to the Secretary of State's Summary Grounds which JS had filed. The application to re-amend came before Farbey J. She directed that it be considered at a hearing together with the question whether JS or his lawyers had breached the duty of candour by failing to make clear that in the Statement of Facts and Grounds that JS was an adult at the time when the claim was issued. The hearing took place on 20 October 2020.
On 28 October 2020 Farbey J gave a judgment: [2020] EWHC 3053 (Admin). She summarised her conclusions as follows at [7]:
“i. By a fine margin, in the particular circumstances of this case, a failure to mention the claimant's date of birth or age in the SFG falls below the standards that the court would expect of the claimant's lawyers but will not be treated as a breach of the duty of candour.
ii. The claimant's application to re-amend his grounds of claim is refused.
iii. The claimant's application to amend his Reply is refused.
iv. The claim will proceed in the Administrative Court.
v. The claim will proceed alone to a permission decision on the papers. Two other similar cases in which the claimant's lawyers are instructed will be stayed pending the outcome of this claim.”
JS appealed to the Court of Appeal against the refusal to permit re-amendment of the Statement of Facts and Grounds and indicated his intention to apply for a stay of the proceedings pending the outcome of that hearing. The matter came back before Farbey J on the papers. On 15 December 2020, she noted that no application had been made for a stay and refused permission to apply for judicial review on the basis that the substantive grounds were not arguable. She added that she had “serious reservations” about JS's standing to bring the claim but did not include that among her reasons for refusing permission.
On 23 December 2020, JS renewed the application for permission and at the same time formally applied for a stay of the proceedings pending determination of the appeal against the refusal of permission to amend. The oral permission hearing before me today was listed on 29 December 2020. The stay application came before Murray J, who on 11 January 2021 ordered that it be considered at the start of today's hearing. He made clear in his order that one matter to be considered today would be “whether (on the basis of the legal position currently obtaining) the Claimant has standing to bring the claim”. Depending on that, the judge hearing the claim might then give further directions including as to stay of the claim and/or relisting of the renewed application for permission or, if appropriate, might proceed directly to consider permission.
Mr Raza Husain QC, for JS, indicated at...
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