Moronokeji Dolapo Komolafe v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Plimmer |
| Judgment Date | 14 June 2017 |
| Judgment citation (vLex) | [2017] EWHC J0614-4 |
| Docket Number | Case No: JR/9359/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 June 2017 |
[2017] EWHC J0614-4
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Field House
15-25 Bream Buildings
London
EC4A 1DZ
UPPER TRIBUNAL JUDGE Plimmer
Case No: JR/9359/2016
Mr Turner appeared on behalf of the Applicant
Mr Metcalfe appeared on behalf of the Respondent
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UTJ
The applicant has renewed her application to challenge a decision of the respondent dated 15 February 2015, in which the respondent refused her application for indefinite leave to remain in the UK as a Tier 1 migrant. This was challenged by administrative review and then further submissions were put in. The administrative review decision that is challenged, and the only one that need concern us for the purposes of this application, is that dated 23 May 2015, in which the respondent maintained her decision.
The first point I need to deal with is that the claim form had been lodged out of time. It is accepted by Mr Turner, who represents the applicant, that the deadline for filing the application was 23 August but that the claim form was not filed until 25 August and it was, therefore, some two days late. The explanation set out within the grounds is weak. It is asserted that the applicant was previously represented by representatives who did not advise of the deadline or the need to act promptly, and as such she was unaware of the same until she instructed counsel on 25 August 2015. It is submitted that it appears that the applicant received bad advice and, applying the case of FP (Iran) v SSHD [2007] EWCA Civ 13, they should not be found against her.
As I observed during the course of Mr Turner's oral submissions, there was no evidence whatsoever to support the assertions made. There was no witness statement from the applicant dealing with any difficulties on the part of the previous representatives; there was nothing from the previous representatives. In my judgment, the explanation provided is entirely unsupported by evidence and is, in those circumstances, a very poor one.
It is also said that this is a case involving children. The applicant and her husband have children and that, because there is such a short delay, their best interests point in favour of an extension of time. I acknowledge that the delay beyond the three-month period is a very short one, however there is a duty to act promptly in any event. However, in my judgment, there is really no explanation for it, given the lack of evidence. In any event, the explanation, given the paucity of evidence, is a very poor one. I do not accept that the presence of children, in a case like the instant one and absent supporting evidence, makes any material difference.
I note that, when considering the information on the papers, Upper Tribunal Judge Jordan also found the application to be out of time. When all the circumstances are considered together, it is my judgment that there are no compelling circumstances justifying an extension of time.
In case I am wrong in my decision not to admit the application and not to extend time, I have gone on to consider whether or not the application, as put, is an arguable one. I have decided that it is not.
I start with the first decision under challenge, that is the decision dated 15 February 2016 to refuse ILR and to find that the applicant has used deception. The decision says this:
'On review of your application dated 5 November 2012, you stated you had previous earnings of £55,936.27 in the period 1 September 2011 to 31 August 2012. On 5 November 2012, in support of your Tier 1 general leave to remain application, you declared the amount of £35,554 net profit to UK Visas and Immigration, from which you claimed to have earned this amount in the form of being a sole trader during the period 1 September 2011 to 31 August 2012, to score points for your previous earnings. You were awarded 30 points based on an income of £55,936.27. These earnings from self-employment were over two tax years: 2011-2012 and 2012-2013. HMRC records show that you have earned declared a turnover of £30,080 and a net profit of £8,580 for the tax year 2011-2012. Our records also show that you did not declare submit a tax...
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