Jayachandra Kumar Nair For Judicial Review Of A Decision By The United Kingdom Border Agency And Answers For The Secretary Of State For Home Departmen
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2014] CSOH 49 |
| Year | 2014 |
| Published date | 13 March 2014 |
| Date | 13 March 2014 |
| Court | Court of Session |
| Docket Number | P939/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 49 | |
| P939/13 | OPINION OF LORD STEWART in the Petition JAYACHANDRAKUMAR NAIR Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 24 July 2014, and Answers for The Secretary of State for the Home Department Respondent: ________________ |
Petitioner: McGuire; McGill & Co
Respondent: Komorowski; Office of the Solicitor for the Advocate General
13 March 2014
[1] The petitioner is a visa overstayer who, you might think, should not be in the country. He has been in the country without any kind of leave, visa-granted or statutorily extended, since 30 August 2012 when his application for an extension of leave was refused. He did not depart, which is a breach of the conditions on which his leave was originally granted. After a lapse of three-and-a-half months he made another application for leave which was refused on 8 March 2013. He had a right of appeal which he did not exercise. Again, he did not depart. After a lapse of three-and-a-half months he made yet another application for leave which was refused on 24 July 2013. Yet again, he did not depart. This time the decision was non‑appealable, so he is now contesting it by means of an application to this Court's supervisory jurisdiction.
[2] The petitioner accepts that the immigration rules mean that leave to remain is normally refused in a case like his; and he accepts that normally individuals in his situation, who fall foul of the rules, have to leave the country and reapply from outside after a penalty period if they want to stay in the United Kingdom. So why is he contesting the decision to refuse him leave to remain? Because, he says, the United Kingdom Border Agency [UKBA] Temporary Migration Team 13 decision maker who made the decision on his latest application "erred in law in deciding not to exercise [the Home Secretary's] discretion outside the rules" i.e. erred in failing to consider waiving the rules in the petitioner's favour; and he would like this Court to set aside Team 13's decision and, in effect, to remit his application for a fresh decision taking what the petitioner says is the correct approach, applying "a modicum of intelligence, common sense and humanity".
[3] I heard submissions on the matter for just over half a day on 19 February 2013. I have to compliment counsel for the petitioner, Mr McGuire, and Mr Komorovski, counsel for the respondent, on their pithy presentations. I also have to emphasise that the petitioner on the information available to me is a respectable individual, a teacher of Indian dance and a choreographer highly reputed in the communities which he serves. He is an employee of Dance Ihayami, Edinburgh, a company limited by guarantee recognised as a charity by the Scottish Charities Regulator. Dance Ihayami is Scotland's only dedicated Indian performance arts group. The petitioner appeared in court with a dozen well-wishers. His latest application to UKBA was underpinned by 50 testimonials and letters of support, dating (so far as dated) from April-June 2013, copies of which have been produced to this Court. I have read all these letters. I have learned that the petitioner is more commonly known as "Jayan Kumar". He comes across as an exceptional individual, multi-skilled in performance modalities ranging from south Indian classical dance forms to Bollywood to Carnatic martial arts and much more, a good communicator, dedicated, energetic and creative, with a pleasing personality. The support is, judging by the names, ethnically diverse. The testimonials include a letter from Kim Smith, Migration and Citizenship, International Division, External Affairs Directorate, the Scottish Government, expressing hope that the petitioner's "appeal" is successful. Nonetheless, having reflected on the matter, I have decided to refuse the petition. I would go so far as to say that if Temporary Migration Team 13 were to have granted leave that would have been an abuse of the discretion which is confided to the Home Secretary. It would have been unlawful.
The statutory framework
[4] The petitioner is an Indian citizen without a right of abode in the United Kingdom. As such, in terms of the Immigration Act 1971 section 1, he has to have leave to enter and stay in the United Kingdom. The power to give leave to remain is vested by section 4(1) of the 1971 Act in the Home Secretary. The 1971 Act section 3(2) directs the Home Secretary to make rules "as to the practice to be followed... for regulating the entry into and stay in the United Kingdom of persons required by [the 1971 Act] to have leave to enter". These are the immigration rules. Unless disapproved by either House of Parliament the immigration rules have a normative effect. They confer rights on those who comply with them. As to non‑compliance, Mr McGuire reminds me that the rules are not absolutely prescriptive in that the Home Secretary has "discretion" to grant leave outside the rules [LOTR]; and that the source of the Home Secretary's power to grant leave outside the rules is, again, the 1971 Act, that is sections 3 to 3C of the 1971 Act [Odelola v SSHD [2009] 1 WLR 1230; R (on the application of Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208; R (Munir) v Home Secretary (SC(E)) [2012] 1 WLR 2192 at § 44 per Lord Dyson JSC with whom the other Justices of the Supreme Court agreed].
The decision and the rules
[5] The petitioner's latest application for leave to remain was made by letter dated 27 June 2013 from his solicitors to UKBA. The application was in terms, and as before, for leave to remain as a Tier 2 (general) migrant. This is an application under the immigration rules, part 6A points-based system, rules 245H-245HF etc, particularly rule 245HD quoted in the application. The purpose of Tier 2 is to "enable UK employers to recruit workers from outside the EEA [European Economic Area] to fill a particular vacancy that cannot be filled by a British or EEA worker". The petitioner scored the requisite points. The application was refused for other reasons by the decision letter dated 24 July 2013.
[6] One matter has to be cleared out of the way before moving to the live issue between the parties. As is accepted by Mr Komorowski there is a mistake in the decision. The mistake occurs on page two of the decision where it is stated: "... it has been decided to refuse your application under paragraph 322(1A), of the Immigration Rules". Rule 322(1A) is in Part 9 of the Immigration Rules headed "General Grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom". One of the general grounds of refusal is, by rule 322(1A), deception by making false representations or by submitting false documents or by non-disclosure of material facts. This comes under the sub-heading "Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused" [emphasis added]. There is no explanation of how this ground of refusal got into the decision on the petitioner's application. It does not fit the context. It may be a copy-and-paste error.
[7] Even with rule 322(1A) out of the way, there is room for uncertainty as to what the reason is or reasons are. This is because the same fact - the petitioner's prolonged overstay - supports two distinct but overlapping decisions, namely first, refusal on the ground that the petitioner has breached a condition of his original leave by overstaying and, secondly, refusal for the reason that the petitioner has actually overstayed and failed to regularise his overstay, or failed to apply to regularise his overstay, timeously.
[8] The refusal is expressed as follows:
"Your leave to remain expired on 14 May 2012, extended (by virtue of Section 3C of the Immigration Act, 1971) until your valid application was decided on 30 August 2012. You did not submit a fresh application for leave to remain until 27 June 2013. You have, therefore, failed to observe the time limit conditions attached to your leave of stay.
In light of this the Secretary of State has deemed that refusal is appropriate under paragraph 322(3) and is not prepared to exercise discretion in your favour."
[...]
You have implicitly requested that discretion be applied to your application, however the particulars of your case have been assessed and it is not considered that there were exceptional circumstances which prevented you from applying within the 28 day period following the expiry of your previous leave."
Some explanation is called for.
[9] Rule 322(3) is another of the Part 9 "General grounds for refusal". Rule 322(3) comes under the sub-heading "Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused" [emphasis added]; and the rule 322(3) ground is: "failure to comply with any conditions attached to the grant of leave to enter or remain." Parties agree that the "failure to comply" is the petitioner's non-departure from the United Kingdom after the expiry of his original leave as extended by statute pending determination of his first and unsuccessful application for further leave to remain.
[10] In addition, to qualify for leave to remain as a Tier 2 (general) migrant in terms of rule 245HD applicants must meet the listed requirements. If an applicant does not meet the requirements, the application "will be refused". Rule 245HD(a) requires that the applicant "must not fall for refusal under the general grounds for refusal" (such as rule 322(3) above). Separately rule 245HD(p) requires that the applicant "must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded." Following the refusal of his application on 30 August 2012 the pursuer had 28 days to leave the...
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