R Bailey v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 25 February 2014 |
| Neutral Citation | [2014] EWHC 1078 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 February 2014 |
| Docket Number | CO/8756/2013 |
[2014] EWHC 1078 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
Mrs Justice Andrews DBE
CO/8756/2013
Mr Hoare (instructed by H & S Solicitors) appeared on behalf of the Claimant
Mr Najib (instructed by Treasury Solicitors) appeared on behalf of the Defendant
This is an application for judicial review of a decision that was originally made on 13th May 2013, to refuse the claimant's application for leave to remain in the UK on essentially Article 8 family and private life grounds. That decision was then reconsidered and a further decision was made by the Secretary of State on 27th September 2013, which is the current decision under challenge.
The claimant, Mrs Bailey, is a national of Uganda. She initially made an application for leave to remain in the jurisdiction on the basis of her relationship with her then husband, but very tragically Mr Bailey took his own life at a time when that application was still being considered. The effect of this tragedy was to put an end to the claimant's ability to apply to stay in the UK on marriage grounds. At the time of that application for leave to remain she had already overstayed her leave. She appealed against the refusal of her application to the First-tier Tribunal, which refused the appeal on 25th July 2012.
I should mention that in the context of that appeal, consideration was given, in some depth, to her Article 8 rights and to the question of whether or not it would be disproportionate to require her to go back to Uganda. The judge of the First-tier Tribunal made an express finding, having undertaken the relevant balancing exercise, that it would not be a disproportionate interference with her rights to a private and family life to expect her to return to Uganda. He described her as a bright and articulate young woman who was then aged 30, and he mentioned the fact that although she had not obtained any further qualifications from her time in the United Kingdom, there was no reason to believe that she would not be able to secure employment in Uganda.
After the refusal of her appeal the claimant formed a relationship with another British citizen, but that relationship is not yet of such a subsisting duration as to enable her to qualify for leave as an unmarried partner. This is because they had not been living together in a relationship akin to marriage for at least 2 years prior to this application.
On 16th May 2013 the claimant made this fresh application for leave to remain on Article 8 grounds. By that stage the considerations in the Strasbourg and domestic jurisprudence of the factors that one weighs in the balance in determining (i) whether or not somebody has a private or family life and (ii) whether or not the refusal of leave or the removal to another country would be a disproportionate interference with that private or family life, had been brought within the Immigration Rules themselves. The new rules signify the way in which the decision maker on behalf of the Secretary of State is expected to carry out the balancing exercise. The Rules are not, however, exhaustive. As the Court of Appeal in the case of MF (Nigeria) and, more recently Sales J in the case of Nagre have made clear, there may be situations in which the evaluation of those factors that now fall within the Immigration Rules will not suffice to dispose of a claim under Article 8. There may be cases of an exceptional nature where the specific circumstances pertaining to an individual claimant who does not qualify under the Immigration Rules nevertheless demonstrate that it would be a disproportionate interference with that person's rights to require them to leave the UK and that accordingly leave to remain should be granted outside the Immigration Rules.
However, it now appears to be clear from the authorities that each case is very much dependent on its own facts, and that the exercise of evaluating the proportionality of interference with the claimant's Art 8 rights, (depending on those facts), will not necessarily require the person making the decision to carry out a completely fresh evaluation of the relevant factors when considering whether or not to exercise discretion outside the Immigration Rules. This is not required if to go through those steps would be an unnecessary repetition of the same balancing exercise that has been carried out within the Rules. The Court has to look at the decision under challenge on the basis of determining whether the decision-maker has properly weighed in the balance all the relevant factors, either inside or outside the Rules.
The main ground of challenge in this particular case is to the decision that Mrs Bailey did not satisfy the requirements of paragraph 276ADE of the Immigration Rules. In particular it is contended that she did satisfy subparagraph (vi), in that she is more than 18 years old, she has lived continuously in the UK for less than 20 years and she has no ties (including social, cultural or family) with the country to which she would have to go if required to leave the UK, namely, Uganda.
The decision maker noted that at the time of her application Mrs Bailey had resided in the UK for a period of 8 years, having entered the UK aged 22 and having applied for leave to remain aged 30. The decision maker goes on to state:
"Your client had still therefore spent the large majority of her life, including her formative years in Uganda and would be more than capable of re-adapting to life in her home nation."
The decision maker also refers to the fact that Mrs Bailey stated on her application form that she speaks the national language in Uganda. None of that is controversial. What is controversial, however, is the next point that is made by the decision maker, namely:
"She has also stated that she has family members to return to there."
The criticism that is levelled at that statement is that Mrs Bailey had made it very clear on her application form that although she had half siblings from her father's second marriage, who lived in Uganda, she had no contact with those half siblings either at the time of her leaving Uganda and entering the UK or at any period thereafter. Therefore, it was submitted that the decision was irrational or unlawful because it made a finding which flew in the face of what the applicant herself was saying. It subsequently came to light, and was referred to in correspondence after the 27th September decision, that when Mrs Bailey had spoken to an immigration officer back in 2008, reference was made by her to a sister who had gone back to live in Uganda. That point was prayed in aid by the Secretary of State in the detailed grounds of defence which were served extremely late, so late in fact that the claimant has not yet been able to produce a witness statement dealing with that specific matter. I was told by Mr Hoare that he was only able to see his client on Friday last week (it is now Tuesday) and that there really was no proper opportunity of getting a witness statement from her to explain how it was that an immigration officer came to make a record of such matters.
Although the passage that I have quoted from the decision of 27th September 2013 relating to Mrs Bailey stating that she has family members to return to in Uganda is ambiguous, and might possibly be a reference to the interview with the immigration officer, I have no evidence that the decision maker knew anything about that matter on 27th September. It is therefore fair that I should discount that evidence specifically in relation to this application, which is concerned with the materials that were before the immigration officer at the time of the decision.
However, taking the Claimant's case at its absolute highest, even if one were to assume in Mrs Bailey's favour that she had no family ties whatsoever with Uganda, (in that she has no family members to whom she could return or with whom she could make contact) and even if one were to ignore the half siblings on the basis that she never had any contact with them anyway, that is not necessarily an end of the matter.
The two authorities that are particularly helpful in relation to the way in which rule 276ADE and the ties point in sub-rule 6 are to be approached are Ogundimu (Article 8-new rules — Nigeria) [2013] UK UT 60 and Green (Article 8-new rules) [2013] UK UT 254. They are both decisions of Blake J. sitting in the Upper Tribunal.
Mr Najib submitted, by reference to Ogundimu, that sub-rule (vi) is in the nature of a true exception. It applies to someone who would otherwise be subject to the 20 year residence requirement but is able to demonstrate that he or she has no ties with the country with which he or she is to be returned. In such circumstances, it would be considered "unjustly harsh" to expect such an individual to establish private life in a country with which he or she has no ties, i.e. a country in which he or she would be a stranger. However, Blake J said in paragraph 125:
"Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the...
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