R (on the application of Bhudia) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J,The Honourable Mr Justice McCloskey |
| Judgment Date | 02 December 2015 |
| Neutral Citation | [2016] UKUT 25 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 02 December 2015 |
[2016] UKUT 25 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Honourable Mr Justice McCloskey, President
Upper Tribunal Judge Plimmer
On this substantive application for judicial review and following consideration of the documents lodged by the parties and having heard Mr M Ahmed and Mr I Ali, both of Counsel, instructed by Equity Law Solicitors on behalf of the Applicant and Mr S Karim, of Counsel, instructed by the Government Legal Department on behalf of the Respondent, at a hearing at Manchester Civil Justice Centre, on 20 November 2015.
R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR
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(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.
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(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.
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(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.
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(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State's withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 applied.
This judgment, to which both members of the panel have contributed, determines the Applicant's substantive application for judicial review, permission having been granted by order of His Honour Judge Raynor QC dated 13 February 2015.
The material facts are uncontentious and we summarise them thus. The Applicant is a national of India, aged 24 years. She and her husband were married in India on 19 October 2011. Her husband is a person present and settled in the United Kingdom. On 05 February 2012, the Applicant was granted entry clearance, valid until 15 May 2014, in her capacity of spouse of such a person. On 30 May 2014 she applied to the Secretary of State for the Home Department (hereinafter “ the Respondent”) for further leave to remain in the United Kingdom in the same capacity. By the Respondent's decision dated 02 July 2014 this application was refused. This refusal is the subject of the Applicant's judicial review challenge.
The Respondent's decision maker gave three reasons for refusing the application:
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(a) The Applicant did not have leave to enter or remain at the time of applying as her leave had expired on 15 May 2014.
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(b) “ You have failed to demonstrate that your marriage is subsisting by not providing six items of correspondence addressed to you and your partner at the same address as evidence that you have been living together during the past two years”.
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(c) “ You have not provided evidence that you have achieved a qualification in English to LEVEL A1 of the Common European Framework of Reference for Language”.
We shall consider each of these reasons in turn. We preface this with the observation that, in substance, the grounds upon which the Respondent's decision is impugned are a mixture of illegality and a breach of the Wednesbury principles consisting of irrationality and a failure to take into account all material evidence.
Paragraph 284 of the Immigration Rules (“ the Rules”) enshrines a series of requirements to be satisfied in the case of a person seeking “ an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom”. In the context of these proceedings, the material requirement is the following:
“ The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that ……….
(iv) The applicant has not remained in breach of the immigration laws, disregarding any period of overstaying for a period of 28 days or less ….”
This is one of a lengthy series of conjunctive requirements listed in paragraph 284. Paragraph 285 is also significant:
“ An extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom may be granted for a period of two years in the first instance, provided the Secretary of State is satisfied that each of the requirements of paragraph 284 is met.”
[The underlining is ours, for reasons which will become apparent infra]
There are three particularly significant dates. The first is 15 May 2014, the date upon which the Applicant's leave to remain in the United Kingdom expired. The second is 30 May 2014, the date upon which she made her application to the Respondent. The third is 02 July 2014, the date of the Respondent's decision. It is common ground that the Applicant became an overstayer on 16 May 2014. The simple question is whether, given this status and having regard to the aforementioned dates, paragraph 284(iv) is to be construed and applied to her benefit or detriment.
This issue, which requires paragraph 284(iv) of the Rules to be construed by the Tribunal, gives rise in our judgement to a relatively uncomplicated exercise and outcome. The arguments on behalf of the parties joined issue on the question of whether the “period of grace” of 28 days is to be measured by reference to the date of the application made under paragraph 284 or the date of the Respondent's decision. The two competing interpretations in the arguments of the parties' representatives are:
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(a) The applicant has a period of 28 days within which to make the extension of stay application, measured from the date immediately following the last day of lawful sojourn in the United Kingdom.
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(b) Irrespective of the date upon which the extension of stay application is made, the applicant becomes an unlawful overstayer upon the expiry of 28 days beginning on the date immediately following the last day of lawful sojourn in the United Kingdom, with the result that if the Secretary of State has not determined the application within such 28 day period it must be refused on account of non-compliance with paragraph 284 (iv).
In Mahad (And Others) v Entry Clearance Officer [2009] UKSC 16, Lord Brown, collating and summarising dicta of the Court of Appeal and recalling the words of Lord Hoffmann in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, at [4], stated at [10]:
“ Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statue or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that theyare statements of the Secretary of State's administrative policy ….
[The intention of the Secretary of State] is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from Immigration Directorates Instructions (IDIs) issued intermittently to guide immigration officers in their application of the Rules …. pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act ….”
Further guidance is provided by Iqbal (And Others) v Secretary of State for the Home Department [2015] EWCA Civ 169, at [31], which highlighted that the exercise of rewriting any provision of the Rules under the guise of purposive construction is a forbidden one. It was further stated, at [33], that the court:
“ … cannot and should not construe the Secretary of State's rules to mean something different from what, on a fair objective reading, they actually say.”
Finally, we remind ourselves of the long established principle of statutory interpretation that the Court will lean against a construction giving rise to an absurdity where the words in question are capable of bearing the suggested alternative meaning.
Against this background of principle, we consider paragraph 284(iv) of the Rules in its full context. Paragraph 284 belongs to Part 8 of the Rules, which is a free standing compartment dedicated exclusively to the topic of “Family Members”. In broad terms, it regulates the grant of leave to enter and remain in the United Kingdom to different types of members of the family of a person who is residing lawfully here. The family members who are the subject of regulation within this regime, which operates in tandem with Appendix FM, include spouses and civil partners. It is clear from a reading of Part 8 as a whole that the decision making process which it contemplates in every case will have three basic elements: an application by the person seeking the benefit or status in question, the consideration of such application and the determination thereof by a final decision.
The scheme of paragraph 284 of Part 8 is to list a series of requirements which must be satisfied by a person seeking an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom. On behalf of the Respondent, Mr Karim submitted that paragraph 284(iv) is to be construed as meaning that if an applicant's extension of stay application has not been determined within a period of 28 days beginning on the date when the applicant became an...
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