R Consuelo Hashmi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,Sir Swinton Thomas,SIR SWINTON THOMAS,LORD JUSTICE KAY |
| Judgment Date | 03 May 2002 |
| Neutral Citation | [2002] EWCA Civ 728 |
| Date | 03 May 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C/2001/2490 |
[2002] EWCA Civ 728
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Cresswell)
Lord Justice Brooke
Lord Justice Kay
Sir Swinton Thomas
C/2001/2490
MR M GILL QC and MISS N BRAGANZA (Instructed by Messrs Ole Hansen & Partners, London) appeared on behalf of the Appellant
MISS D ROSE (Instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
I invite Sir Swinton Thomas to give the first judgment.
This is an appeal from a decision of Cresswell J of 1st November 2001, when he dismissed the claimant's claim against the Secretary of State for the Home Department for judicial review of:
(1) the failure of the defendant to endorse the claimant's and her dependants' passport in accordance with his letter of 11th July 2000 with indefinite leave to remain ("ILR");
(2) the defendant's decision of 31st July without notice to the claimant for any enquiry being made of her, effectively reversing the previous decision of 11th July 2000 when refusing to vary the claimant's and her dependants' leave to remain.
The relief that was sought by Mrs Hashmi was:
(1) an order requiring the defendant to endorse the claimant and her dependants' passport with ILR;
(2) an order quashing the defendant's decision of 31st July 2001; and
(3) damages.
The background to the claim is as follows. The claimant, Mrs Consuelo Hashmi, is a national of Colombia. She arrived in the United Kingdom on 31st December 1997 and was given leave to enter as a visitor. On 2nd May 1998 she married her husband, Mr Sajid Hashmi, a British citizen. On 17th June 1998 she applied for an extension of her stay as a spouse settled in this country. On 17th June 1998 she applied for an extension of her stay in the United Kingdom on the grounds of her marriage. On 2nd November she was given leave to remain as a foreign spouse of a British citizen until 10th October 1999. On 8th November she visited Colombia to see her daughter who was ill and returned to this country on 8th December. On 19th December she went to Colombia again to see her daughter. She returned to this country on 13th March 1999. On 15th September 1999 the appellant applied for ILR. She submitted her passports to the Immigration and Nationality Department of the Home Office ("IND"), but, unfortunately, they lost the passports. This seems to me to be a relevant factor in relation to what occurred thereafter.
Mr Hashmi, the appellant's husband, wrote to Miss Tessa Jowell MP asking for her assistance. On 17th November new passports were issued to the appellant and her family. In November she and her family went to Ecuador, as a result of which the application for ILR lapsed. They returned to the United Kingdom on 6th March 2000 and the appellant was given leave to enter as a spouse of a British citizen for 12 months, that leave expiring on 6th March 2001. That is a relevant date and one which is relied upon by Miss Rose on behalf of the Secretary of State.
On 7th April 2000 the appellant applied to extend her leave to enter to ILR. She was advised that those applications were premature because she still had leave to be in this country. On 14th June Mr Hashmi wrote again to Miss Jowell asking for her help. Miss Jowell wrote to the IND asking that the family be given "special consideration".
On 11th July 2000 the Secretary of State wrote to Miss Jowell a letter which is central to this appeal. It reads as follows:
"Dear Ms Jowell
Thank you for your letter of 27 June enclosing this correspondence from Mr Sajid Hashmi of 191, Auckland Hill, London SE27 9PD who is concerned about his family's immigration status.
As you know Mrs Hashmi, her daughter and grand-daughter were given limited leave to enter the United Kingdom until 6 March 2001 when they returned here from Bogota. On 17 April they were advised that their applications for indefinite leave to remain could not be processed because they had extant leave until next year. This case has now been very carefully reviewed in the light of your representations. In view of the fact that we previously mislaid the family's papers and as Mrs Hashmi has already completed 12 months as the spouse of a British Citizen by October 1999 we have decided exceptionally that the family may be granted indefinite leave to remain immediately. Their original passports should accordingly be sent to me at the Immigration and Nationality Directorate [address given] by recorded delivery. I will then arrange for the documents to be appropriately endorsed and returned to the family's home address."
On 17th August the appellant delivered the relevant passports to the Home Office to be endorsed with her ILR. On 21st August and 24th August her husband and her husband's solicitors wrote to the Home Office saying that the marriage had broken down and he no longer supported her application for ILR. Between December 2000 and 15th June 2001 the appellant and her solicitors on a number of occasions pressed the Home Office, asking that the passports be returned duly stamped. On 31st July 2001, just over a year after the letter of 11th July 2000, the Home Office wrote to the appellant's solicitors stating that her application for ILR was refused on the ground...
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