R Juned Ahmed v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Sweeney |
| Judgment Date | 07 March 2018 |
| Neutral Citation | [2019] UKUT 10 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 07 March 2018 |
[2019] UKUT 10 (IAC)
THE HONOURABLE Mr Justice Sweeney
IN THE UPPER TRIBUNAL
JUDGMENT GIVEN FOLLOWING HEARING
R (on the application of Ahmed) v Secretary of State for the Home Department (para 276B — ten years lawful residence)
If there is no ten years continuous, lawful residence for the purposes of para 276B(i)(a) of the Immigration Rules, an applicant cannot rely on para 276B(v) to argue that any period of overstaying (for the purposes of 276B(i)(a)) should be disregarded. Para 276B(v) involves a freestanding and additional requirement over and above 276B(i)(a).
Mr M Biggs, Counsel, instructed by Chancery Solicitors, appeared on behalf of the Applicant.
Mr Z Malik, Counsel, instructed by the Government Legal Department, appeared on behalf of the Respondent.
By permission of Upper Tribunal Judge Kopieczek, granted at an oral hearing on 17 November 2017, the Applicant (a citizen of Bangladesh who is now aged 31) seeks judicial review of the Respondent's decision, made by a decision letter dated 13 March 2017, refusing the Applicant's application made on 4 February 2016, as ultimately varied on 7 November 2016, for indefinite leave to remain on the ground of his ten year residence, pursuant to paragraph 276B of the Immigration Rules, and certifying, pursuant to Section 94 of the Nationality, Immigration and Asylum Act 2002 Act 2002, as amended (“the 2002 Act”), that the human rights claim made by that application was “ clearly unfounded”.
There are three Grounds of Review, namely that:-
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(1) The 13 March 2017 decision was based on a material flaw and was thus unreasonable, because it rested on a misinterpretation of paragraphs 276B and 276A of the Immigration Rules to the effect that the period of time between the making of the Applicant's original application to further remain on 4 February 2016 and the decision on the varied application for leave to remain on the ground of long residence, was not to be counted when considering whether, for the purposes of paragraph 276B(i)(a) and taking into account paragraph 276B(v), the Applicant had had at least ten years' continuous lawful residence.
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(2) The Respondent acted unreasonably in failing to reach a decision with respect to the exercise of her discretion; and/or failed to provide any, or any adequate, reasoning as to the exercise of that discretion; and/or failed to consider material matters.
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(3) In all the circumstances, the Respondent's certification of the Applicant's human rights claim was unlawful – as there is a real prospect of the Applicant showing on appeal that he was entitled to leave pursuant to paragraph 276B of the Immigration Rules, and/or that the Respondent acted unlawfully and unreasonably regarding the exercise of her discretion; and in any event, given the length of the Applicant's lawful residence in the UK and all the circumstances.
It is thus clear that the target of the Applicant's claim is the Section 94 certificate. The relief sought by the Applicant is an Order quashing that certificate and a declaration that the Applicant may and should pursue his appeal from the 13 March 2017 decision before the First-tier Tribunal in the ordinary way. In the alternative, an order quashing the 13 March 2017 decision is sought.
Whilst otherwise opposing the claim on all fronts, the Respondent accepted that, in the event that the Applicant succeeded, there were no “special or exceptional factors” justifying the retention of the case in the Upper Tribunal – (see R (Khan) v SSHD [2017] 4 WLR 152 at [9] and [26]–[32]) and that the appropriate course would be for any appeal to be heard in the First-tier Tribunal.
The Applicant arrived in the United Kingdom on 11 October 2006, with an entry clearance as a student, valid from 25 September 2006 until 30 September 2007. He made an application for further leave to remain as a student on 5 September 2007 and was granted further leave to remain on 1 October 2007, until 31 October 2010.
The Applicant made an application for further leave to remain as a Tier 1 (Post-Study Work) Migrant on 8 October 2010 and was granted further leave to remain on 24 November 2010 until 24 November 2012.
The Applicant made an application for further leave to remain as a Tier 4 (General) Student on 27 September 2012 and was granted further leave to remain on 5 December 2012, until 30 April 2014. He made a further application for leave to remain as a Tier 4 (General) Student on 22 April 2014 which was granted on 16 May 2014, until 28 August 2015.
On 28 August 2015 the Applicant made another application for leave to remain as a Tier 4 (General) Student, which was refused on 4 December 2015. On 29 December 2015 the Applicant applied for Administrative Review, which was refused on 20 January 2016. The refusal was deemed served on 22 January 2016.
Some 13 days later, on 4 February 2016, the Applicant made an application for further leave to remain, this time based on his ancestry. On 31 March 2016 he made a further application for leave to remain based on his private and family life. The Respondent refused the ancestry application on 24 July 2016. On 28 July 2016 the Applicant sent a pre-action protocol letter. On 11 August 2016 the Respondent maintained her decision, in consequence of which, on 8 September 2016, the Applicant issued judicial review proceedings (JR/9897/2016) challenging the Respondent's ancestry decision.
On 22 September 2016 the Applicant made an application for indefinite leave to remain outside the Immigration Rules. Finally, on 7 November 2016, the Applicant made an application for indefinite leave to remain on the grounds of his ten years' residence in the United Kingdom.
On 17 November 2016 the parties settled the judicial review proceedings in relation to the ancestry application, and it was agreed that the application made, outside the Rules, on 22 September 2016 would be considered as a variation of the applications made on 4 February 2016 (ancestry) and 31 March 2016 (private and family life).
The Respondent refused the long residence application for indefinite leave to remain in a letter dated 13 March 2017 and, under Section 94 of the 2002 Act, certified the Article 8 claim made therein as “ clearly unfounded”– concluding that the Applicant had not lived in the United Kingdom continuously and lawfully for a period of ten years.
The letter set out the Applicant's immigration history and, as to consideration under paragraph 276B of the Immigration Rules, concluded that:
“ You subsequently applied for further leave to remain on 04 February 2016 13 days out of time for Family / Private Life leave to remain which you then varied to another Family / Private Life leave application, then varying to Outside the Rules indefinite leave to remain then finally varying to indefinite leave to remain based on 10 years lawful residency.
As this has not been followed by a grant of leave to remain your continuous lawful residence was broken on 22 January 2016. Therefore, you have only completed 9 years 3 months continuous lawful residence in the United Kingdom.
With this in mind, you have not demonstrated ten years continuous lawful residence and cannot satisfy the requirement of Paragraph 276B(i)(a).
For the reasons outlined above, your application is refused under Paragraph 276D with reference to Paragraph 276B(i)(a) of HC 395 (as amended)”.
The letter went on to make clear that, in considering the application, it had also been considered whether the exercise of discretion was appropriate as the Applicant could not demonstrate 10 years continuous lawful residence.
As to family life, it was recorded that the Applicant's partner was a Bangladesh national who was currently present in the UK with no leave to remain – and was therefore not a British citizen, was not settled in the UK, and was not in the UK with refugee leave or as a person with humanitarian protection. It was also noted that the Applicant had no children in the UK. In those circumstances, it was concluded that the family life application failed.
Consideration was then given to the requirements for leave to remain on the basis of the Applicant's private life in the UK under paragraph 276ADE(1) of the Rules. It was concluded that the Applicant did not meet the requirements of paragraph 276ADE(1) (iii), (iv), (v) & (vi). It was also concluded, against the background that the Applicant had lived the majority of his life (including his formative years) in Bangladesh, and the maintenance of his family ties there, that there were no significant obstacles to the Applicant's reintegration into Bangladesh. Therefore, it was concluded that the private life application failed.
Consideration was finally given to whether the Applicant's application raised any exceptional circumstances which might warrant the grant of leave to remain outside the requirements of the Immigration Rules. The letter recorded that the Applicant had stated that he was concerned about the risk to his and his partner's lives from political opponents if they returned to Bangladesh but noted that the Applicant had not made a protection claim. The letter continued:
“ Consideration has been given to the fact that you may have established relationships with people resident in the UK, other than with your partner. However, you have provided no evidence of an exceptional level of dependency between you and any such people in the UK. Furthermore, there is no reason why contact with any people you may know in the UK cannot be maintained from abroad. Many people maintain contact with family and friends from abroad through modern means of communication and visits. You have...
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