R Amarjit Singh v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Robin Purchas |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWHC 945 (Admin) |
| Date | 26 April 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/799/2016 |
[2018] EWHC 945 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Purchas QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/799/2016
Mr Michael Biggs (instructed by Mayfair Solicitors) for the Claimant
Mr William Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 10 th April 2018
Judgment Approved
Robin Purchas QC:
Introduction
The Claimant applies for judicial review of:
a. The decision of the Defendant made on 26 th January 2010, refusing the Claimant's application for an extension of his leave to remain as a tier 5 religious worker on the ground that it was not served on him as required by section 4(1) of the Immigration Act 1971 (the 1971 Act) (Ground 1);
b. The decision of the Defendant dated 17 th December 2015, refusing the Claimant's application for leave to remain on human rights grounds and certifying the claim as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) on the ground that the decision was in both respects unlawful (Ground 2); and
c. His detention from 5 th November 2015 until 19 th February 2016 on the ground that it was unlawful (Ground 3).
There were also claims in respect of the service of notices relating to his removal, but these have become academic and were no longer pursued in this court.
The application for judicial review was lodged on 22 nd January 2016. Permission was refused as totally without merit by the deputy High Court judge but was granted by the Court of Appeal by consent on 16 th October 2017.
Background
The Claimant is a national of India and is a religious worker. He entered the UK on 2 nd December 2007 with Tier 5 leave as a religious worker until 7 th May 2008. On 9 th April 2008 he applied for an extension of leave, which was granted until 2 nd December 2009. The Claimant failed to make a further application for an extension of leave before his leave expired but did so on 22 nd December 2009. As the application had been made after expiry of the period of leave, the Claimant did not benefit from interim continuance of his leave while the application was being determined pursuant to section 3C of the 1971 Act.
An acknowledgement of the application was sent to the address which the Claimant had given in his application, which was the Singh Temple in Cheshire Road, Smethwick, where he was working. The Claimant stated in his witness statement that he took advice from a colleague, who said that he should not worry about the outcome of the application as it could take years before a decision could be made and that he should not make any enquiries with the Defendant.
On 26 th January 2010 the Defendant made the decision to refuse the extension of leave. The decision letter explained that the Claimant did not satisfy the requirements of the rules for an extension to be made, including that he did not have a certificate of sponsorship from a recognised sponsor. As a result he was awarded no points and the application was refused. The letter stated that there was no right of appeal against the decision and that he had no right to remain in the UK and should leave as soon as possible. He was required to contact the enforcement office by 9 th February 2010 to discuss his departure from the UK. The letter went on to say that, if the Claimant wanted the Defendant to reconsider the decision on the basis of new or additional material, he must submit a fresh application with the appropriate fee.
Claire Turner, an acting senior executive officer of the Defendant, explained in her witness statement that the letter was sent by recorded delivery to the Claimant at the same address and that it was not returned as undelivered. However, the Claimant states that he never received the decision letter and was unaware that a decision had been made until he was encountered and interviewed in November 2015.
The Claimant remained at the Singh temple until October 2010, when he moved out to travel around the country working on a voluntary basis as a religious worker in various Sikh temples and festivals.
On 5 th November 2015 the Claimant was staying with a friend in east London when the premises were raided by immigration officers, who arrested the Claimant. In his witness statement the Claimant explained that in interview at the police station he was told that he had been arrested because he did not have leave to remain. He told the officers that he had made an application for an extension of leave, but they said that the application had been refused in 2010. The Claimant responded that he had never received the decision, to which the officers replied that the decision had been made in 2010 and he had been summoned to report to the immigration authorities, which he had failed to do.
The Claimant was served with a notice of liability to removal, which stated as the reasons for it being given:
“You are specifically considered to be a person who has overstayed their leave to remain in the United Kingdom. You were granted leave to remain until 2 nd December 2009 as a religious worker. However your most recent application was refused with no right of appeal on 26 th January 2010. You are therefore liable for removal from the United Kingdom.”
He was also served with a notice of the reasons for his detention which included that:
“Detention is only used when there is no reasonable alternative. It has been decided that you should remain in detention because …
a. You are likely to abscond if given temporary admission or release; …
d. Your removal from the United Kingdom is imminent…
This decision has been reached on the basis of the following factors:
1. You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place …
8. You have previously failed or refused to leave the UK when required to do so….”
There were no other grounds or factors identified on the form.
The Claimant was thereafter detained. The detention review for 5 th November 2015 noted at paragraph 6:
“Assessment of risk of absconding: High – Subject is an overstayer/illegal worker in the UK. He does not have enough close ties in the UK to make it likely that he will stay in one place. He has previously failed to leave the UK when required to do so and he does not have any lawful basis to be in the UK.”
On 29 th November 2015 removal directions were served for the Claimant's removal on 10 th December 2015.
On 7 th December 2015 solicitors acting for the Claimant wrote to the Defendant pursuant to section 120 of the 2002 Act, seeking leave for the Claimant to remain. The letter stated that, as the Claimant had not received notice of the decision letter in 2010, he had an outstanding application for extension of his leave. It continued that he should be granted leave to remain on human rights grounds under article 8 in reliance on his family and private life.
On 9 th December 2015 the removal directions were deferred and subsequently reset for 23 rd January 2016.
On 17 th December 2015 the Defendant refused the application. The letter set out the reasons for the decision, including that the Claimant had not established any human rights claim within the rules relating to family or private life. The letter went on to consider exceptional circumstances and leave outside the rules under Article 8. In paragraph 15 it stated:
“In support of your application you state that you have an outstanding application with the Home Office pending since December 2009. It is noted that this application under T5 TW – Religious Migrants was refused on 26 th January 2010 with the refusal letter sent to Bababandasinghbahadur Sikh Temple, 217–218 Cheshire Road Smethwick West Midlands B67 6DJ. It is noted that the letter has not been returned to the home office as undelivered. The onus is on you as the applicant to prove that the letter has not been received.”
The Defendant now accepts that the last sentence in that paragraph is incorrect in that there was no presumption of service that applied to this decision at the time, so that the Defendant had the burden of proving service on the balance of probabilities.
The letter concluded that there were no exceptional circumstances that would justify the grant of leave outside the rules.
The claim was one that fell within section 94(3) of the 2002 Act so that the Defendant had to certify the claim as clearly unfounded unless she was satisfied that it was not clearly unfounded. The Defendant concluded that the human rights case had not been made out and that the Claimant had failed to demonstrate anything exceptional to support the grant of leave. On that basis the Defendant concluded that the application for leave was “clearly without substance and cannot succeed on any legitimate view.” The Defendant accordingly certified the claim under section 94 of the 2002 Act as clearly unfounded.
On 22 nd January 2016 the claim for judicial review was lodged and the removal directions were again deferred.
On 19 th February 2016 the Claimant was released from detention, having been detained for a total of 107 days.
Legal and Policy Framework
Section 4(1) of the 1971 Act provides:
“(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) … shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in...
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