R (Ngouh) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 27 August 2010 |
| Neutral Citation | [2010] EWHC 2218 (Admin) |
| Date | 27 August 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5981/2009 |
[2010] EWHC 2218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Foskett
Case No: CO/5981/2009
Helen Mountfield QC and Samantha Knights (instructed by Immigration Advisory Service) for the Claimant
Alexander Ruck Keene (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 9 July 2010
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Foskett:
Introduction
The Claimant is a national of Cameroon where he was born and educated. He passed the International Baccalaureate and came to the UK in November 1991 at the age of 21 with leave to enter as a student in order to study (and thus advance his) English initially. That leave was subsequently extended until the end of November 2003. Shortly before the end of that extended leave he enlisted in the British Army and served for a total period of just less than 4 1/2 years, including a 6-month dangerous operational tour of duty in Iraq. He left the Army voluntarily on 1 April 2008. He is now aged 30.
He brings these proceedings with permission granted by Blair J following an oral renewal hearing on 10 November 2009 (permission having previously been refused on the papers by Ouseley J on 12 August 2009) to challenge to the decision letter of the Secretary of State for the Home Office (‘the Secretary of State’) of 25 February 2010 (which replaced the decision letter of 13 March 2009) to refuse his application for indefinite leave to remain (‘ILR’) in the UK on the basis of his service in the British Army.
It has long been the policy of the Secretary of State that those who have served in the Army for a significant period should have an enhanced status within the framework that applies to those seeking the right to live in the UK (see paragraph 7 below). This was once called ‘the Armed Forces Concession’.
Few would, in my judgment, quarrel with the proposition that, but for one blot (or possibly two blots) on his copybook (see paragraphs 12–14 and 84–90 below), the Claimant was (and remains) a prime candidate for the grant of indefinite leave to remain (‘ILR’) in the UK given his Army service and the positive assessments made of him by those who supervised him in the Army, particularly reflected in the reference referred to in paragraph 39 below. There is no doubt that he would not be someone who would be a drain on public resources—indeed quite the reverse. Subject to the supervisory jurisdiction of judicial review, the grant of ILR is, however, a discretionary matter for the Secretary of State. The Claimant is supported in his endeavours to remain in the UK by The Royal British Legion and by The Soldiers, Sailors, Airmen and Families Association.
The case he advances in these proceedings is that the decision to refuse him ILR was irrational, disproportionate and unreasonable and/or insufficiently reasoned and/or in breach of his rights under Article 8 of the European Convention on Human Rights (‘the ECHR’).
I will turn to these matters in due course, but by way of preface it should be noted that, unlike many who seek the court's intervention in these matters, he entered the UK lawfully and was lawfully in the UK for much of the period during which his long-term immigration status has been under consideration. He did at one stage technically become an “overstayer” (see paragraph 59 below), but subsequently (see paragraph 74) the Secretary of State has confirmed that the point was not being taken against him for reasons which will become apparent in due course.
The applicable rules
The current Immigration Rules applicable to someone who has served in the Army are rules 276L-Q. They are as follows:
“ Requirements for indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces
276L. The requirements for indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces are that:
(i) the applicant has completed at least four years’ service with HM Forces; and
(ii) was discharged from HM Forces on completion of engagement; and
(iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and
(iv) holds a valid United Kingdom entry clearance for entry in this capacity.
Indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces
276M. A person seeking indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces may be granted indefinite leave to enter provided a valid United Kingdom entry clearance for entry in this capacity is produced to the Immigration Officer on arrival.
Refusal of indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces
276N. Indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces is to be refused if a valid United Kingdom entry clearance for entry in this capacity is not produced to the Immigration Officer on arrival.
Requirements for indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces
276O. The requirements for indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces are that:
(i) the applicant has completed at least four years’ service with HM Forces; and
(ii) was discharged from HM Forces on completion of engagement; and
(iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and
(iv) on the date of application has leave to enter or remain in the United Kingdom.
Indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces
276P. A person seeking indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces may be granted indefinite leave to remain provided the Secretary of State is satisfied that each of the requirements of paragraph 276O is met.
Refusal of indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces
276Q. Indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276O is met.”
Other rules of potential relevance to the Claimant's case are paragraphs 320(19), 322 and 363 of the Immigration Rules. Paragraph 320(19) is as follows:
“In addition to the grounds for refusal of entry clearance or leave to enter set out in Parts 2–8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:
…
(19) where from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.”
Paragraph 322 (which was effective from 1 April 2008 and which is relevant to the exercise of discretion provided by rule 276P) is as follows:
“ Refusal of variation of leave to enter or remain or curtailment of leave
322. In addition to the grounds for refusal of extension of stay set out in Parts 2–8 of these Rules, the following provisions apply in relation to the refusal of an application for variation of leave to enter or remain or, where appropriate, the curtailment of leave:
Grounds on which leave to remain in the United Kingdom is to be refused
(1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules.
(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application.
Grounds on which leave to remain in the United Kingdom should normally be refused
(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave;
(3) failure to comply with any conditions attached to the grant of leave to enter or remain;
(4) failure by the person concerned to maintain or accommodate himself and any dependants without recourse to public funds;
(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his character, conduct or associations or the fact that he represents a threat to national security;
(6) refusal by a sponsor of the person concerned to give, if requested to do so, an undertaking in writing to be responsible for his maintenance and accommodation in the United Kingdom or failure to honour such an undertaking once given;
(7) failure by the person concerned to honour any declaration or undertaking given orally or in writing as to the intended duration and/or purpose of his stay;
(8) failure, except by a person who qualifies for settlement in the United Kingdom or by the spouse or civil partner of a person settled in the...
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