Krasniqi v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Nicholas Paines |
| Judgment Date | 15 May 2013 |
| Neutral Citation | [2013] EWHC 2860 (Admin) |
| Date | 15 May 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8170/2012 |
[2013] EWHC 2860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Nicholas Paines QC
(Sitting as a Deputy High Court Judge)
CO/8170/2012
Mr D O'Callaghan (instructed by Scudamores Solicitors) appeared on behalf of the Claimant
Dr C Staker (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is a case of a claimant who arrived in this country from Kosovo in October 2000 and made an asylum claim. He was, at this stage, a minor, and although the asylum claim was refused in March 2002, he was granted exceptional leave to remain until a date in 2004 which would fall shortly after his 18th birthday. Later in 2004, further leave to remain was refused and an appeal against that decision was dismissed.
In July 2010, the Home Secretary took a decision upon an application that the claimant had made using form SET(O) for leave to remain. The letter refused the application. It considered the claimant's claim to have family life in the United Kingdom based on a past relationship with a British citizen and the birth to the couple of a child, in December 2007. The decision letter recorded the claimant's confirmation that the relationship with the lady had broken down but that the claimant wished contact with his son, and planned to apply to the family court for a contact order. The letter dismissed the claim based on article 8.
I do not need to go further into the reasons. What is said about the letter is that the decision maker wrongly failed to proceed to consider immigration rule 395C. Mr O'Callaghan so submits on the basis first of all that the claimant's case was a 'legacy case,' in other words, an asylum claim had been made earlier than 2007. Mr O'Callaghan goes on to submit that the Secretary of State was therefore required to give a decision "under the legacy", and he contends that such decision would include consideration of rule 395C. That is the premise upon which his criticisms of a later letter, which is challenged in these proceedings, are based.
I do not accept that the premise is arguable. That is for two reasons. I do not consider it to be arguable that different substantive rules apply to legacy cases as opposed to other cases. That being so, the issue has to be whether rule 395C itself required the Secretary of State to consider it on the 2010 occasion. And I do not find it arguable that it did, given that the rule is prefaced with words referring to removal under section 10 of the 1971 Act. The 2010 decision was not a decision about removal.
Mr O'Callaghan goes on to submit, on the basis of that premise, that, having wrongly failed to consider the case under rule 395C in 2010, fairness compelled the Secretary of State to consider it under that rule in October of 2012, when she took the decision challenged in these proceedings.
That decision was in response to a letter written on the claimant's behalf in August 2011, asking for further submissions to be considered as a fresh claim within the meaning of paragraph 353 of the rules. The reply, given in October 2012, considering the further submissions, found the claim under article 8 not to be made out by them, and then proceeded to consider the new immigration rule, 353B, which had replaced rule 395C in February 2012.
Rule 353B did, by its terms, require the Secretary of State to consider it on this occasion because its opening words refer to an adverse decision under rule 353. The Secretary of State made one plain error of fact in her consideration of rule 353B, where she incorrectly said that the claimant had never been given any valid leave to remain. It is common ground that he was given leave during his period of presence here as a minor. That error was corrected when the decision of October 2012 was reconsidered by the Secretary of State in a letter of February 2013.
Mr O'Callaghan also criticises the October 2012 decision in relation to rule 353B on the grounds that the claimant's degree of compliance with immigration control was not sufficiently acknowledged, the decision letter saying: "your compliance is not considered a sufficiently compelling reason for you to remain in the United Kingdom". Mr O'Callaghan's complaint here goes purely to weight, and does not arguably raise unlawfulness.
His third complaint, that the claimant's 12 years of past residence was not sufficiently considered is, as I understand it, based on the argument that because of the alleged deficiency in the 2010 letter, the Secretary of State was obliged in 2012 to consider the case on the basis of not only rule 395C but also chapter 53 of the Enforcement Instructions and Guidance, as per the decision of this court in Mohammed [2012] EWHC 3091(Admin).
I reject that as unarguable because I have rejected...
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