R Mohammad Shahzad Khan v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Beatson,Lord Justice Ryder,Lord Justice Longmore
Judgment Date04 May 2016
Neutral Citation[2016] EWCA Civ 416
Docket NumberCase No: C2/2014/0468
CourtCourt of Appeal (Civil Division)
Date04 May 2016
Between:
The Queen on the application of Mohammad Shahzad Khan
Appellant
and
Secretary of State for the Home Department
Respondent

[2016] EWCA Civ 416

Before:

Lord Justice Longmore

Lord Justice Beatson

and

Lord Justice Ryder

Case No: C2/2014/0468

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

JR14872013

Royal Courts of Justice

Strand, London, WC2A 2LL

Sharaz Ahmed and Darryl Balroop (instructed by Law Lane Solicitors) for the Appellant

Gwion Lewis (instructed by Government Legal Department) for the Respondent

Hearing date: 14 April 2016

Further submissions: 18 and 20 April 2016

Lord Justice Beatson

I. Introduction

1

The appellant is Mohammad Shahzad Khan, a citizen of Pakistan born on 20 May 1974, and thus now aged 41. In proceedings filed on 11 June 2013, he sought permission to challenge the decision of the respondent, the Secretary of State for the Home Department, on 12 March 2013 refusing his application made on 2 July 2012 for leave to remain in the United Kingdom on the basis of 14 years long continuous residence pursuant to Rule 276B(i)(b) of the Immigration Rules and Article 8 of the European Convention on Human Rights. Permission was refused on the papers by Mr Fordham QC on 22 October 2013, and, following a hearing on 10 January 2014, by Upper Tribunal Judge Peter Lane. Permission to appeal to this court was refused on the papers by Sir Stanley Burnton on 20 June 2014 but, following a hearing on 25 February 2015, was granted by Sullivan LJ.

2

The principal issue in the substantive appeal concerns the nature of the evidence required to support an application for leave on the basis of long continuous residence. In particular, do only "official" documents suffice, and what is the status of non-official but "independent" documents and letters and of letters from neighbours and friends? This is an issue that arose in two other cases which were listed to be heard with Mr Khan's case, but in which consent orders withdrawing the decision were filed very shortly before the hearing. In both cases the Secretary of State withdrew the decision challenged and agreed to reconsider the application. In Mr Khan's case, it is also submitted on his behalf that the Secretary of State erred in considering his human rights claim under immigration rules which only came into force on 9 July 2012, after he had made his application, and that her assessment of Article 8 of the European Convention on Human Rights was materially flawed in law.

3

As a result of recent applications and submissions, there were three other matters before the court. Two arise from applications on behalf of the Secretary of State. The first, filed on 9 March 2016, is for permission to adduce further evidence, a witness statement dated 29 February 2016 of Ms Noshaba Khan, a Home Office Litigation Caseworker, which was relied on in support of the second application. The matters dealt with in that statement had been drawn to the attention of Mr Khan's representatives some four months earlier, in a letter dated 23 October 2015. The Secretary of State's second application, filed on 5 April 2016, is for an order pursuant to CPR 52.9(1)(b) setting aside the grant of permission to appeal. It is submitted that the appellant and/or his representatives are in serious breach of their duty of candour in judicial review proceedings and permission to appeal was granted without Sullivan LJ being given the full picture as to the evidence in the bundle.

4

The third matter is a submission on behalf of Mr Khan foreshadowed in a witness statement of Hina Kargar, a trainee solicitor with Law Lane Solicitors, dated 12 April 2016 that the Secretary of State should be debarred from defending the appeal because she is in breach of the rules which (see CPR PD 52C and Timetable, Part 1) require a skeleton argument to be filed within 42 days.

5

At the hearing, the court first heard submissions on these matters. It admitted the evidence sought by the Secretary of State. It reserved its decision on the application to set aside permission, but indicated it was minded to refuse it, and it rejected the application that the Secretary of State be debarred. I now give my reasons for the decisions that were made, and my conclusions on the application to set aside permission and the substantive points in the appeal. Before doing so, I summarise the factual and procedural background and the decision below in sections II and III of this judgment. My reasons for admitting the evidence are at [31] below and those for rejecting the application that the Secretary of State be debarred are at [52]. I deal with the application to set aside permission in section IV(iv) of this judgment. Notwithstanding the indication given at the hearing, for the reasons I give at and [47] – [52] below, I have concluded that in the circumstances of this case the requirements of CPR 52.9(2) are satisfied, that there is a "compelling reason" for setting aside permission, and that in this case permission to appeal should be set aside. If my Lords agree, there is therefore is no need to decide the substantive appeal. However, since we heard full argument on that, and in the light of the wider importance of the question of what documents qualify for consideration by the Secretary of State, I deal briefly with that at [57] – [63] and with the other grounds at [64] – [67].

II. The factual and procedural background

6

Mr Khan's case is that he entered the United Kingdom illegally on 1 January 1998 with the assistance of an agent, and has remained here ever since. His case is that, because of his mode of entry, he has no travel documents to confirm his date of entry. It will be seen that over the years he has been represented by four firms of solicitors; J M. Amin & Co of Wembley, Rahman & Co of West Green Road, Khans of Ilford, and Law Lane of Stratford.

7

In September 2002, an application was made by a Mr Dad of Farnoak Ltd, t/a Sky Fries, a fast food takeaway, for a work permit for Mr Khan to work at Sky Fries. Mr Dad also appears to have been Mr Khan's landlord at the time. The representative appointed by the employer in connection with the application was J M Amin & Co, Solicitors, of Wembley. An immigration consultant from the firm signed the application.

8

The answer given to question 14 in the application for a work permit is of crucial importance to Mr Khan's case that he is entitled to leave to remain on the basis of long continuous residence and to the respondent's application that permission to appeal be set aside. Question 14 is a request for relevant details of the applicant's employment covering at least the last three years. The answer stated that from 5 February 1998 to 27 June 2001 Mr Khan was a Tandoori chef at the Hotel Sarban, Abbottabad, Pakistan. If that answer is correct, on 2 July 2012 when Mr Khan's application for leave pursuant to Rule 276B was made, it was fundamentally flawed. In the words of Mr Gwion Lewis, on behalf of the Secretary of State, it was fatally doomed because of the four year gap in residence.

9

On 29 November 2002, the Home Office wrote to J M Amin & Co stating that Mr Khan was granted a work permit for five years. The letter stated that the Work Permits (UK) In-Country Decision Team would consider whether Mr Khan's leave to remain could be extended and he would be notified of the decision in writing. He was instructed to cease employment immediately if leave to remain was refused. In a letter dated 20 December 2002, J M Amin & Co wrote to the Home Office on this occasion on behalf of Mr Khan. They enclosed his passport for endorsement, and asking for it to be returned. The letter described Mr Khan as "our client".

10

Mr Khan's passport was apparently returned to J.M Amin & Co. but it did not reach Mr Khan. In November 2004 a different firm of solicitors, Rahman & Co., contacted the Secretary of State on Mr Khan's behalf asking for an update on his application and for his passport. In a letter dated 24 November 2004, the Secretary of State stated that officials had worked on Mr Khan's case on 20 November 2003 and the database suggested that, on that date, the decision letter and Mr Khan's passport were sent by recorded delivery to "the former reps" J.M. Amin & Co.

11

In a letter dated 13 December 2004 responding to further inquiries, the Secretary of State stated she was unable to provide a number for the recorded delivery letter enclosing the passport or a copy of the refusal notice. The letter also informed Rahman & Co. that, in short, the notices stated:

"On the 2 nd December 2002 J.M. Amin & Co applied for leave to remain in the United Kingdom as a work permit holder. This application has been refused".

The reasons given ([114]) were that Mr Khan had not provided any evidence of lawful entry into the United Kingdom and the Secretary of State was not satisfied that he had entered the United Kingdom with a valid work permit or in a category that allows a switch into a work permit.

12

The next development was the application ten years later, dated 2 July 2012, by Khans of Ilford on Mr Khan's behalf for leave to remain on the basis of long continuous residence pursuant to the then existing 14 year rule in paragraph 276B(i)(b) of the Immigration Rules. The application letter stated that because Mr Khan entered the United Kingdom with an agent he was unable to provide the original passport and that a copy was enclosed. It listed the following documents as enclosed: ESOL Certificate, passport sized photographs, College certificates, NHS card and letters, reference letters, payslips, utility bills, P60s, tax papers,...

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