R Kaur v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Alexandra Marks |
| Judgment Date | 28 January 2015 |
| Neutral Citation | [2015] EWHC 766 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2015 |
| Docket Number | CO/10436/2013 |
[2015] EWHC 766 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Alexandra Marks
(Sitting as a Deputy High Court Judge)
CO/10436/2013
Miss Mansit Dogra appeared on behalf of the Claimant
Mr Richard O'Brien appeared on behalf of the Defendant
DEPUTY JUDGE: I am particularly concerned that the claimant and her husband who are both in court today should know of my ruling as soon as practicably possible. Once I have finished my remarks today, a transcript will be available and no doubt corrections may need to be made to some of the detail.
I start by stating that this is an application for judicial review by the claimant Paramjit Kaur against a decision of the defendant, the Secretary of State for the Home Department, contained in two decision letters, one dated 2 May 2013 (attaching a Notice of Decision of the same date) and supplemented by a further letter on 25 April 2014.
The claimant challenges the defendant's decision as being contrary to paragraph 276ADE (1) (vi) and EX. 1. (b) of Appendix FM of the Immigration Rules which I shall respectively hereafter refer to as the "no ties" issue and the "insurmountable obstacles" issue.
A further issue about the best interests of the child, or the welfare of the child, under Section 55 of the Borders, Citizenship and Immigration Act 2009 and Section 1 (3) of the Children Act 1989, was not pursued in oral argument and I have therefore not considered that issue.
However, I have considered the arguments presented by the parties in respect of the claimant's Article 8 rights under the European Convention on Human Rights (the "exceptional circumstances" issue).
In order that the parties will not have to wait until the end of my judgement, I say straightaway that I have found in favour of the claimant on the "no ties" issue and the "insurmountable obstacles" issue but not in respect of the "exceptional circumstances" issue. I will now explain why I have reached those conclusions.
As I said just now, the claimant's challenge is to the decision of the Secretary of State dated 2 May 2013. That decision refused this claimant leave to remain in the United Kingdom. The claimant asserts that her removal from the United Kingdom would amount to a breach of her Article 8 rights and those of her family. Her grounds in brief were that the defendant had failed to assess her claim properly, and that the defendant had not attached due weight to evidence adduced in support of the claimant's Article 8 claim.
The defendant's response is contained in a witness statement which is attached to the defendant's skeleton argument. That statement, dated 12 May 2014, attached a supplemental letter from the Secretary of State dated 25 April 2014 not included in the claimant's bundle.
Very briefly, the facts are that the claimant, Mrs Paramjit Kaur, is an Indian national whose date of birth is 23 December 1959. She is therefore now 55 years old. She is married to Mr Gurinder Singh whose date of birth is 31 December 1959 so he, too, is now 55 years old. Mr Singh and the claimant married on 16 January 1983 when they were both 23 years of age. They have therefore now been married for thirty-two years. Mr Singh came to the United Kingdom in January 1997 soon after his 37 th birthday. Mrs Kaur — his wife, the claimant in these proceedings — stayed in India with the children of the couple who were at that time aged 13 and 10.
According to evidence which has been produced in the claimant's bundle, Mrs Kaur travelled to the United Kingdom under a Visitor's Visa approximately four times a year to visit her husband. However, after her last arrival in the United Kingdom on 10 December 2006 (some eight years ago) — a few months after her daughter, who by then lived here, had given birth to a son, that child now being eight-and-a-half years old — the claimant did not return to India despite the expiry of her Visitor's Visa in June 2007.
When Mr Singh applied in 2010 for leave to remain under the so-called legacy scheme, it appears that Mrs Kaur believed that she was a party or a co-applicant to that application. By that date in 2010, Mrs Kaur's husband Mr Singh had been resident in the United Kingdom for some 13 years. Indefinite leave to remain in the United Kingdom was granted to him in March 2011. But the claimant asserts that no decision was made in respect of her claim.
There is some difficulty getting to the bottom of this issue because documentation relating to Mr Singh's legacy application and correspondence exchanged between Mr Singh and the UK Border Authority, as well as his solicitors and the UK Border Authority, was produced only in court today and appears incomplete. It may indeed be the case — and I think Mr O'Brien pushed this firmly — that there was in fact no legacy application made on behalf of Mrs Kaur although there may have been a misconception by both Mr Singh and Mrs Kaur in that respect.
Be that as it may, the claimant now argues that her application made some two years later in 2013 for leave to remain was not considered properly by the defendant in respect of "insurmountable obstacles" as set out in paragraph EX.1. (b) of the Immigration Rules.
Paragraph EX.1.(b) applies if:
"the applicant has a genuine and subsisting relationship with a partner who is in the United Kingdom and is a British Citizen, settled in the United Kingdom ..and there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom."
The test for "insurmountable obstacles", the claimant argues, is as set out in Gulshan (Article 8 – New Rules – correct approach) Pakistan [2013] UKUT 640 (IAC) (17 December 2013):
"..the term "insurmountable obstacles" in provisions such as Section EX.1. are not obstacles which are impossible to surmount: MF (Nigeria): they concern the practical possibilities of relocation."
The claimant submits that the defendant failed to address the practical possibilities of relocation of the claimant and her husband in light of their ability (or otherwise) to support themselves were they to return to their country of origin.
In oral argument today it was pointed out that Mr Singh is now 55. The retirement age in India is 60. The claimant submits that the chances of him obtaining gainful employment in India were he to return there are, essentially, non-existent. Therefore he would be unable to provide financially for his wife (the claimant). What is more, it is said that the couple has no accommodation in India. Mr Singh left India some eighteen years ago, and his wife now eight-and-a-half years ago.
It was argued by Miss Dogra on behalf of the claimant that this amounted to more than "a degree of" hardship for the claimant and her husband: it constituted "extreme" hardship.
Ms Dogra noted that the letter written by the defendant on 2 May 2013 does not mention "insurmountable obstacles" at all, and the defendant's Notice of Decision of the same date, while acknowledging "a degree of hardship" states that the Secretary of State is not satisfied that there are insurmountable obstacles preventing the claimant from continuing her relationship with her husband in India.
The issue of insurmountable obstacles was raised in the claimant's pre-action protocol letter dated 25 May 2013 which stated that it would be unreasonable to expect the applicant's husband to relocate to India because he is 55. The letter also stated that it would be extremely difficult for him to secure gainful employment in India, so the claimant and her husband would be destitute were they to return there. It was noted in that letter that the retirement age in India is 60.
The defendant's letter to which I have already referred (the supplemental letter) dated 25 April 2014 does not mention any of these matters or indeed insurmountable obstacles at all.
The claimant argued secondly was that there was a failure by the defendant to consider properly the nature and extent of the claimant's remaining ties in India under paragraph 276ADE (vi) which provides that the requirement to be met by an applicant for leave to remain on the grounds of private life in the United Kingdom are that at the date of the application, the applicant:
".. (vi). is aged 18 years or above, has lived continuously in the United Kingdom for less than 20 years …but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the United Kingdom."
On behalf of the claimant, Miss Dogra submitted that the test to be applied when considering "no ties" is that set down in Ogundimu(Article 8 – New Rules) Nigeria [2013] UKUT 60 (IAC)(18 February 2013):
"The natural and ordinary meaning of the word "ties" imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to the life of that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person's nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless."
It was accepted in the Ogundimu case that the test of "no ties" under...
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