Mizanur Rahman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Moylan |
| Judgment Date | 13 February 2018 |
| Neutral Citation | [2018] EWCA Civ 2758 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2016/2832 |
| Date | 13 February 2018 |
[2018] EWCA Civ 2758
In The Court Of Appeal (civil Division)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Upper Tribunal Judge Roger
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Lord Justice Moylan
Case No: C2/2016/2832
The Appellant, Mr Rahman, appeared in Person
Mr D Sternberg (instructed by the Government Legal Department) appeared on behalf of the Respondent
I will ask Lord Justice Moylan to give the first judgment.
The Appellant, Mr Mizanur Rahman, appeals from Upper Tribunal Judge Rogers' decision on 9 December 2015 to refuse the Appellant's application for permission to bring judicial review proceedings against the Secretary of State's decision on 23 April 2015. By that decision, the Secretary of State rejected the Appellant's application for leave to remain and certified his claim as clearly unfounded.
When refusing the Appellant's application, UTJ Rogers found that the claim was wholly without merit. On 7 June 2016, His Honour Judge Purle QC, gave the Appellant permission to appeal to the Court of Appeal. It is not clear to me why permission was given. In his reasons, Judge Purle says that the “appeal faces obvious difficulties”, but nevertheless considered that the Appellant “should have the opportunity to renew his application to the Court of Appeal”. My Lord, Hickinbottom LJ will deal further with this aspect of the process in his judgment.
At today's hearing, the Appellant has appeared in person. His submissions have previously been set out in a number of documents, the most recent being his skeleton dated 24 January 2018. We did not call on Mr Sternberg, who appears on behalf of the Secretary of State, but we have been provided with a comprehensive skeleton which was updated on 23 November 2017 and was prepared on behalf of the Secretary of State by Miss Catherine Brown.
The Appellant was born in Bangladesh on 1 January 1985. He lived there until 12 February 2008 when he entered the United Kingdom on a student visa valid until 31 May 2010. He was granted further leave to remain as a student on 18 June 2010 until 31 December 2013. Two further grants of leave to remain were given, the last on 9 October 2014 until 20 December 2014.
On 14 January 2015, the Appellant applied for leave to remain on human rights grounds. On 2 February 2015, he was served with a Form IS 151A informing him that he was liable to removal and detention as an overstayer. On 23 April 2015, as referred to above, his Application for leave to remain was refused and, as I have said, was certified as clearly unfounded.
As set out in the decision letter, the Appellant had said that he had come to the United Kingdom as a student in order to escape adverse social circumstances in Bangladesh and to improve his quality of life. Whilst in the United Kingdom, he has completed a Bachelor of Law degree. He has also completed the Bar Professional Training Course and been called to the Bar.
The Appellant's claim was based on his health under Article 3 and his private life under Article 8. The decision letter considered the relevant provisions of the Immigration Rules and determined that the Appellant did not meet the requirements of rule 276ADE(1). This was in part because he had not lived in the United Kingdom in circumstances which satisfied any of sub-paragraphs (iii) to (v).
The first part of sub-paragraph (vi) was satisfied, in that the Appellant was aged over 18 and had lived continuously in the United Kingdom for less than 20 years. However, the Secretary of State determined that the Appellant would not face very significant obstacles to his integration into Bangladesh if he was to be returned there. He had lived there until he was aged 23, which was the majority of his life. His mother and younger brother continued to live in Bangladesh and it was to be expected that he had cultural and social ties there.
The letter made a number of other observations, including, inaccurately, that the Appellant had developed his private life in the UK “whilst residing here illegally”. The Appellant had in fact been residing here lawfully. This was acknowledged on the same page of the decision letter when the issue of exceptional circumstances was being addressed. It is there stated that the Appellant had adhered to the conditions of his visa and had only recently become an overstayer.
The decision letter addressed whether leave to remain should be granted outside the rules on the basis of the presence of exceptional circumstances. After an extensive analysis of the Appellant's circumstances, it was determined that there were no exceptional circumstances. This included the Appellant's claim that he “might suffer permanent psychiatric harm due to social neglect, rejection, unemployment, poverty, unhealthy environment and poor accommodation”, in respect of which it was noted that he had provided no evidence to substantiate that claim.
The Appellant had also relied on the following medical conditions, namely depression, high blood pressure, stress, occasional panic attacks and possible kidney disease because of the presence of blood in his urine. The Appellant's medical issues were taken into account. The letter refers to them as not being life-threatening, to the availability of treatment in Bangladesh and to there being nothing to suggest that his family would not be able to support and assist him.
The Appellant's medical conditions were also considered under Article 3. The decision letter noted that the Appellant had been discharged from the care of a hospital following normal results for his urine. There was no evidence that he was currently receiving or required any treatment for certain of his conditions, namely those in respect of which he had been discharged from the care of the hospital.
In respect of the Appellant's mental health, the availability of treatment in Bangladesh was set out based on the Country of Origin Information Service. It was concluded that treatment would be available if required and that any differences in the nature and extent of the treatment available in Bangladesh as against in England, was not sufficient to establish the Article 3 threshold.
The Secretary of State determined that the claim was clearly unfounded and certified it as such. It was noted that the Appellant failed to meet the requirements of paragraph 276ADE(1), that there were no exceptional circumstances, and also that there were no other compassionate factors justifying the grant of leave. The application was considered to be “clearly without substance and cannot succeed on any legitimate view”.
The Appellant issued his claim for judicial review on 8 July 20He challenged the decision to refuse his application for leave to remain. The Secretary of State's rejection or refusal of his application was said to be unlawful “on the grounds of illegality and procedural impropriety”. The grounds focused on the reasons for the Appellant not making his claim until after the expiry of his leave to remain, and on the fact that the Secretary of State had acted, it was asserted, unlawfully by breaching the Home Office policy that any period of overstaying by no more than 28 days would be disregarded. Further, it was stated that the medical evidence had been misunderstood. Accordingly, it was claimed that the decision was unlawful because the Secretary of State took irrelevant matters into account and failed to take relevant matters into account.
The Appellant's claim was considered on the papers and determined by UTJ Rogers on 9 December 2015. His reasons for rejecting the claim included that the application had been “considered in depth and under all relevant headings in the comprehensive decision letter of 23 April 2015”; that it did not “appear that the decision maker was unduly influenced by … the overstay of under 28 days as alleged. The decision was taken on the wider merits (or lack of them) of the case as a whole”; and that it was unarguable that the Appellant's medical condition had not received “adequate care and reasonable consideration”. The further reasons given were that “the decision letter is full and detailed and cannot be said to display an irrational or unlawful approach”; that the comparative situations in the United Kingdom and Bangladesh were given full and proper consideration; and, finally, that the certification of the claim as clearly unfounded was also justified and a decision open to the maker.
The Appellant's grounds of appeal are long and diffuse. Today he has, however, presented his arguments in a far more structured and focused manner. He has argued his case persuasively and comprehensively. However, some of the matters he raises are new and there is nothing which would justify them being considered by this court. I also do not address matters which go outside the scope of this appeal.
I propose to summarise the Appellant's case as follows:
(1) the Secretary of State's decision was irrational as matters were considered in isolation and not as a whole;
(2) The Upper Tribunal Judge wrongly concluded that the Secretary of State had not been unduly influenced by the fact that the Appellant was an overstayer, although his application had been made less than 28 days after the expiry of his leave to remain. In this respect, the Upper Tribunal Judge failed properly to take into account that the Secretary of State had wrongly considered that the Appellant had developed his...
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