Md Saddik Md Ab Sowdager (ap) For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Date | 11 March 2020 |
| Court | Court of Session |
| Published date | 11 March 2020 |
OUTER HOUSE, COURT OF SESSION
2020 CSOH 32
P349/19
OPINION OF LORD BRAILSFORD
in the Petition of
MD SADDIK MD AB SOWDAGER (AP)
Petitioner
for
Judicial Review
Petitioner: Caskie; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
11 March 2020
[1] The petitioner is a citizen of Bangladesh. He arrived in the United Kingdom on
5 November 2007. In the present petition he seeks to judicially review a decision of the
Upper Tribunal (Immigration and Asylum Chamber)(“UT”) to refuse to grant him
permission to appeal against a decision of the First-tier Tribunal (“FTT”) in terms of which
he was refused leave to appeal against a decision refusing him right to remain in the UK on
article 8 ECHR grounds. The respondent is the Advocate General for Scotland as the
appropriate law officer in Scotland in relation to proceedings raised against the Secretary of
State for the Home Department.
[2] Following arrival in the UK the petitioner was granted Leave to Remain until
13 December 2009. It is not disputed that after that date the petitioner was lawfully resident
2
in the UK until 25 April 2017, the date on which an application for Indefinite Leave to
Remain was refused with no right of appeal.
[3] Subsequent to 25 April 2017 on 8 May 2017 the petitioner submitted another Leave to
Remain application which was refused on 5 July 2018. At a subsequent hearing before the
FTT counsel for the petitioner conceded that he could not succeed in an application for
Leave to Remain under the Immigration Rules (“IR”)
1
. The petitioner’s application was
thereafter considered and determined under reference only to his article 8 rights. In the
present petition it was argued on behalf of the petitioner that the concession made before the
FTT should not have been made and the fact that it was meant that the petitioner did not
have a fair hearing. In turn the concession and consequent decision of the FTT was said to
impugn the decision of the UT which is the subject of the present petition. The respondent’s
position in relation to this state of affairs is narrated in paragraph 19 of the answers.
The Immigration Rules
[4] Determination of the issues raised in this petition require consideration of a number
of rules set forth in the IR. Rule 276B sets out requirements for Indefinite Leave to Remain
on the ground of long residence in the United Kingdom. Insofar as relevant to this petition
this rules provides:
“276B. The requirements to be met by an applicant for indefinite leave to remain on
the grounds of long residence in the United Kingdom are that:
(i)(a) he has had at least 10 years continuous lawful residence in the United
Kingdom.
…
(iii) the applicant does not fall for refusal under the general grounds for
refusal.
…
1
Published 25 February 2016.
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