Punam Naresh Binaura v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Nicholas Padfield |
| Judgment Date | 05 July 2016 |
| Neutral Citation | [2016] EWHC 1578 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2016 |
| Docket Number | Case No: CO/2848/2015 |
[2016] EWHC 1578 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Padfield QC
(Sitting as a Deputy High Court Judge)
Case No: CO/2848/2015
The Queen on the application of
Rajiv Sharma (instructed by Messrs H&M Solicitors) for the Claimant
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 7 June 2016
Approved Judgment
Mr Nicholas Padfield QC:
Background
The Claimant is a citizen of India and was born on 15 th July 1983.
The Claimant arrived in the United Kingdom on 18 th June 2009, with an entry clearance as spouse of her husband, a Tier 4 (General) Student, valid until 28 th February 2010. Her leave, as her husband's dependent spouse, was subsequently successively extended until 24 th November 2013.
The Claimant made an application within time for further leave to remain on 20 th November 2014 as her husband's dependent spouse. The Secretary of State refused that application on 27 th January 2014, with a right of appeal.
The Claimant lodged an appeal against that decision on 10 th February 2014. By virtue of section 3C of the Immigration Act 1971 her leave was continued.
The appeal was, however, withdrawn on 30 th April 2014. As a result, the continuation of her leave ceased under section 3C of the 1971 Act.
The Claimant made a fresh application out of time, but within 28 days of the cessation of her leave on 30 th April 2014, for leave to remain as her husband's dependent spouse on 20 th May 2014.
The Secretary of State refused the application on 5 th August 2014, with no right of appeal.
The Claimant made a further application out of time by 183 days for leave to remain as her husband's dependent spouse on 5 th February 2015.
The Secretary of State refused the application on 3 rd March 2015 with no right of appeal, under Paragraph 319 C (j) of the Immigration Rules on the ground that the Claimant had overstayed for more than 28 days in the UK when she made her application.
On 17 th March 2015 the Claimant requested an Administrative Review of the Secretary of State's decision of 3 rd March 2015. The result of the Administrative Review was that the Secretary of State upheld her decision on 24 th March 2015.
The Claimant issued her Judicial Review claim on 17 th June 2015, within 3 months of the Secretary of State's Administrative Review decision on 24 th March 2015.
On 15 th October 2015 Sir Stephen Silber granted the Claimant permission to apply for Judicial Review, after hearing oral submissions, on the non-specific ground that the threshold of arguability was low.
The Claimant's Judicial Review Challenge
The Claimant challenges the Secretary of State's decision of 3 rd March 2015 on the basis that she was refused leave to remain solely because she was an overstayer in breach of the immigration laws, and made her application outside the mandatory period of 28 days imposed by Paragraph 319 C (j) of the Immigration Rules.
Paragraph 319 C: Requirements for entry clearance or leave to remain
Paragraph 319 C of the Immigration Rules was a new Rule which the Secretary of State stated on the UKBA website would be implemented on 1 st October 2012 under the heading "Changes to applications from overstayers from 1 st October 2012": "In June 2012 we announced that from 1 st October 2012 applications for further leave will be refused if you have overstayed your leave by more than 28 days at the point you made your application……"
Paragraph 319 C states:
"To qualify for entry clearance or leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements
…
(j) 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 will be disregarded."
The Grounds of Challenge
The grounds of challenge to the Secretary of State's decision are four:
i) The Secretary of State should have exercised her discretion under paragraph 319 C (j) of the Immigration Rules ("the Rule") to allow the Claimant's application for leave to remain as the spouse of a relevant points based system migrant, despite her failure to meet the mandatory requirements of the Rule by being an overstayer in breach of immigration laws for more than 28 days.
ii) The Secretary of State failed to follow her published policy by refusing the Claimant's application.
iii) The refusal of the Claimant's application was unfair.
iv) The Rule is incompatible with Article 8 and the Claimant's Article 4 rights.
I deal with each ground in turn.
Ground 1: the Secretary of State should have exercised her residual discretion under the Rule in the Claimant's favour.
Ground 1 begs the question, since it assumes that the Secretary of State has a discretion to exercise in the application of the Rule. That is a false assumption since Rule 319 C (j) is mandatory. The Claimant must meet the listed requirements in (j). If she does not meet these requirements, her application will be refused. It is accepted that the applicant was in breach of immigration laws, as an overstayer in the UK for a period in excess of the 28 days allowed (in fact she had been an overstayer for 183 days when she made her application), so that she could not meet the mandatory requirements listed in (j) of the Rule.
The Secretary of State had no discretion under the Rule to relax the mandatory requirements which it imposed. She was bound by the Rule and consequently was under a duty to apply the Rule and to refuse the Claimant leave to remain.
Mr. Sharma for the Claimant sought valiantly to argue that mandatory rules such as Rule 319 C (j) were unlawful, because they fettered the Secretary of State's power to consider individual cases on their merits.
As I understood Mr. Sharma's argument, his attack on the Rule as being "unfair" was put on the same basis, namely, that the automatic application of the Rule precluded any consideration of the Claimant's individual circumstances and was therefore "unfair" to her. In particular, there had been no consideration by the Secretary of State of the Claimant's "application, appeal and litigation history", in Mr. Sharma's words.
Put at its highest, and somewhat contradictorily, Mr. Sharma's submission appears to be that even a mandatory rule did not exclude the discretion of the decision maker to relax it in the particular circumstances of the case. The Secretary of State's failure to exercise her discretion under the Rules made her decision unlawful as a matter of public law.
Mr. Sharma faces an uphill struggle in view of the weight of authority against his submission. First, in Reg. (Sayaniya) v Upper Tribunal [2016] EWCA Civ.85 the Court of Appeal held that the Immigration Rules, although susceptible to challenge on the basis of error of law, Wednesbury unreasonableness, irrationality and proportionality, are not statements of policy subject to all the public law constraints on policies and discretionary powers, including the non-fettering principle, since they are expressly contemplated by sections 1(4) and 3(2) of the Immigration Act 1971.
"Although not in express words, the power to make 'rules… as to the practice to be followed in the administration of this Act' has to be construed as conferring the power on the Secretary of State. Section 1(4) of the 1971 Act provides that "the rules laid down by the Secretary of State" as to practice to be followed for regulating the entry into and stay in the United Kingdom of those do not have the right of abode "shall" include provision for admitting such persons coming for the purpose of taking employment, study, as visitors, or as dependents of persons lawfully in or entering the United Kingdom. By section 3(2) of the 1971 Act, it is the Secretary of State who is required to lay statements of the rules and of any changes in them before Parliament. Such rules are subjected to a negative resolution procedure that is similar to the Parliamentary control over many statutory instruments.": para. 22 of the Sayaniya case.
In R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UK SC the issue was whether and when a policy statement was required, pursuant to section 3(2) of the 1971 Act, to be laid before Parliament. The Supreme Court held that policies setting out criteria which are or may be determinative of an application for leave to enter or remain must be in immigration rules laid before Parliament. An example is Rule 319 C (j) in the present case.
There is no suggestion in Alvi's case or in any of the other cases in the House of Lords or the Supreme Court that an Immigration Rule which is in mandatory terms is, for that reason alone, ultra vires: see the Sayaniya case at para.24.
In R (Fu) v Secretary of State for the Home Department [2010] EWHC 292 (Admin) Mitting J expressed the position succinctly in relation to a different Rule, Rule 34.
"[20] Parliament has approved the manner in which the Secretary of State should exercise her ultimate discretion to grant or refuse leave to enter and remain in the United Kingdom by approving the Immigration Rules. Those rules clearly provide for a tick box scheme. In those circumstances it is only to be expected that the rules will be applied in the ordinary case automatically without the exercise of careful discretion based on individual facts.
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