R Kalsi and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing DBE,Lord Justice Lewis,Lady Justice King |
| Judgment Date | 16 February 2021 |
| Neutral Citation | [2021] EWCA Civ 184 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C6/2019/2662 |
| Date | 16 February 2021 |
[2021] EWCA Civ 184
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal
Judge Allen
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: C6/2019/2662
Sibghat Kadri QC and Arthur Blake (instructed by AKL Solicitors) for the Appellant
Zane Malik (instructed by Government Legal Department) for the Respondent
Hearing dates: 4th February 2021
Approved Judgment
Introduction
This is an appeal from a decision of the Upper Tribunal (Asylum and Immigration Chamber) (‘the UT’). The UT had refused permission to apply for judicial review on the papers. The application for permission was renewed. The UT again refused the permission after a hearing.
On this appeal, the Appellant (‘A’) was represented by Mr Kadri QC and Mr Blake. The Respondent (‘the Secretary of State’) was represented by Mr Malik. I am grateful to counsel for their written and oral submissions. I also thank all counsel for their willingness to respond helpfully and with good humour to the many questions they were asked during the hearing.
The decision which is the subject of the application for judicial review
The decision challenged in the claim form (which is not dated), is a decision of the Secretary of State made on 11 April 2019 (see section 3 of the claim form). The index for the bundle for this hearing confirms that impression. The decision of 11 April 2019 is described in the index as ‘Copy of the decision challenged in the Judicial Review’. For reasons which will become clear, I will refer to that decision as ‘decision 6’. However, the grounds in the claim form are, in substance, a challenge to a later decision, dated 23 May 2019. Again, for reasons which will become clear, I will refer to that decision as ‘decision 7’. The first paragraph in the section in the grounds headed ‘Submissions’ asserts that decision 7 is ‘irrational and contrary to law’. A relies in support of that argument on evidence submitted to the Secretary of State in the application for administrative review which generated decision 7, and not on evidence submitted before decision 6 was made. The final sentence of the section headed ‘Submissions’ repeats that contention. No challenge to decision 6 is articulated in the claim form. When asked during the hearing which decision A challenged, Mr Kadri QC told us that it was decision 6.
Sequence of applications
It is difficult to understand the rival arguments on this appeal without an understanding of the sequence of the recent applications by A to, and the decisions of, the Secretary of State. Before the hearing, the Court asked the parties to send it copies of the relevant decisions, many of which were not in the bundle for the appeal.
That sequence is summarised in decision 4.
A was last granted leave as a Tier 1 Entrepreneur Migrant valid from 18 December 2013 to 18 April 2017. On 18 April 2017 A submitted an in-time application (‘application 1’). Application 1 was refused (‘decision 1’). Section 3C of the Immigration Act 1971 extended A's leave until the decision on A's application for administrative review of decision 1 was served on A, on 27 February 2018.
On 8 March 2018, A made a further application for leave to remain as a Tier 1 Entrepreneur Migrant (‘application 2’). Paragraph 39E of the Immigration Rules (‘the Rules’) was applied to disregard the period of overstaying between 27 February 2018 and 8 March 2018. Application 2 was refused, but not on the grounds that A was an overstayer (in short, A had not provided sufficient evidence of the necessary funds). Application 2 was refused on 1 May 2018 (‘decision 2’). According to A's grounds for applying for judicial review, he applied for an administrative review of decision 2 on 15 May 2018. The refusal was maintained in a decision dated 12 June 2018 (‘decision 3’).
A made a further application for leave to remain as a Tier 1 Entrepreneur Migrant on 2 July 2018 (‘application 3’). Application 3 was refused on 30 August 2018 (‘decision 4’), explicitly on the grounds that A was excluded from applying for leave to remain as Tier 1 Entrepreneur Migrant because he was an overstayer when he made the application, and paragraph 39E of the Rules did not apply to him. The decision letter is confusing on a first reading, because it seems that the Secretary of State awarded A maximum points for the all the relevant attributes (internal pages 3–4) but then said (internal page 4) that, in line with paragraph 245DD(o) of the Rules, the Secretary of State had not, in fact, assessed the application in accordance with paragraph 245DD(k) of the Rules. The Secretary of State reserved the right to do such an assessment in any challenge to decision 4, or in any further application for leave to remain as a Tier 1 Entrepreneur. The decision letter said that A could apply for administrative review within 14 days, but only if A thought that there had been a case-working error. A did not have to leave the United Kingdom during that 14 day-period, or while any application for administrative review was being decided.
According to A's grounds for applying for judicial review in this case, he applied for an administrative review of decision 4 (the date of that application is not given in the claim form) (‘application 4’). According to the claim form, that refusal was maintained in a decision which the Court has not seen, apparently on 9 October 2018 (‘decision 5’), and apparently on the grounds that A was an overstayer when he made application 3. According to the claim form, A then applied for judicial review of decision 4. The Secretary of State agreed to settle that claim on the basis of a consent order dated 19 January 2019. The Secretary of State agreed to reconsider decision 4. Mr Kadri referred to that litigation during his oral submissions. None of the papers relating to that litigation is in the bundle. Since I have not seen any of the relevant papers, I cannot give those submissions any weight. However, it is likely that the consent order provided for decision 4 to be quashed, and I will assume that that is so.
In the bundle for this hearing there is a letter from the Secretary of State to AKL Solicitors (‘AKL’) dated 18 February 2019. AKL represented A at that stage, and still do. The Secretary of State was reconsidering application 3 in line with the consent order. The Secretary of State said that Royal Mail's website confirmed that decision 3 was signed for on 15 June 2018. The letter continued, ‘Please could you confirm your reasons for considering this decision to have been served on 20 June 2018. If you have any supporting evidence for this date of service, please could you send it to me…’
AKL then wrote to A's former representatives, GB Immigration (GBI') on 26 February 2019. AKL said that decision 3 ‘was signed for as received by your office on 15 th June 2018’. AKL asked GBI to explain ‘how you arrived at the date of service as 20 th June 2018 as this is now becoming an issue in respect of our client's judicial review and this is a very important point which needs to be addressed urgently’. AKL enclosed some correspondence, but it is not clear what that was. The letter of 26 February was sent by email.
Mr Navinder Kalsi of GBI replied by email to AKL on 1 March 2019. He said that, as he had explained on the telephone, the recorded delivery slip was signed for by ‘a Tobin’. There was no-one in GBI with that name. GBI were in a serviced office, so it seemed that another tenant had signed the slip. It was not ‘provided in our post until 20 th June, which is the date we have worked from’.
Mr Kalsi was later able to trace the person who signed the slip. He was Luke Tobin, ‘a former tenant of the building with whom I shall request to send over confirmation of the same…’ Mr Kalsi sent a further email that day to AKL, forwarding an email from Luke Tobin. Luke Tobin's email said, ‘Hi Navinder, Thanks for your email. This letter was signed for on the 15/06/2018 and added to your letter box when I next returned to the office on the 20/06/2018’. Mr Kalsi's email to Mr Tobin is not in the bundle.
AKL thanked GBI in an email dated 1 March 2018. AKL said that ‘As a competent lawyer, you were duty bound to establish the date when the documents were served at your offices rather than the date on which they were brought to your knowledge. If you had carefully searched the royal mail website, you would have established that the decision was served on 15, and you ought to have worked your dates from that day rather than any other dates. We reserve our client's position in respect of any losses due to your negligence’.
On 5 March 2018, AKL replied to the Secretary of State's letter of 18 February. They said that, as the Secretary of State had probably gathered, they did not act for A at the time, and they ‘therefore had to seek clarification from the former Solicitors’. AKL added that they had managed to speak to the former representatives, and ‘they inform us that even though the document was signed for in the serviced offices on 15 th June 2018 it was not properly served onto them until 20 th June 2018, this is due to the fact that they operate from a serviced office and the document was delivered to the wrong party by the Royal Mail. The person who signed for this document is from another office and he by mistake accepted the delivery and thereafter did not pass it onto the Solicitors until 20 th June 2018’.
The letter of 5 March does not refer to the correspondence I have described in paragraphs 11–14, above. A's junior counsel, Mr Blake, told the Court that AKL had emailed this material to the Secretary of...
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