R Onkarsingh Nagre v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Sales
Judgment Date28 Mar 2013
Neutral Citation[2013] EWHC 720 (Admin)
Docket NumberCase No: CO/12951/2012

[2013] EWHC 720 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Sales

Case No: CO/12951/2012

Between:
The Queen on the Application of Onkarsingh Nagre
Claimant
and
Secretary of State for the Home Department
Defendant

Mr Zane Malik (instructed by MLC) for the Claimant

Ms Lisa Giovannetti QC (instructed by Treasury Solicitor) for the Defendant

Hearing date: 19/3/13

Mr Justice Sales

Introduction

1

This is an application for judicial review of the lawfulness of certain additions to the Immigration Rules promulgated by the Secretary of State on 13 June 2012 in her Statement of Changes in Immigration Rules, HC 194, in relation to claims based on family life, as now contained in provisions contained in Sections E-LTRP (Eligibility for limited leave to remain as a partner) and EX.1 (Exception) of Appendix FM (Family Members) to the Immigration Rules. The ground of challenge relied upon is that Section EX.1 is unlawful on the basis that it is incompatible with Article 8 of the European Convention on Human Rights, as given effect in domestic law under the Human Rights Act 1998 ("the HRA"). I am told that this is an issue which affects a significant number of other cases.

2

In addition, at the hearing, Mr Malik for the Claimant intimated, even if the new rules are not quashed as unlawful, the Claimant wished to challenge the lawfulness of the particular decision taken in his case to refuse him leave to remain in the United Kingdom. That was not a complaint distinctly set out in the Claimant's Grounds of Claim. However, on the footing that this challenge should focus upon the decision of the Secretary of State in revised form as set out in a new decision letter dated 18 March 2013 (which Mr Malik agreed to), Ms Giovannetti QC for the Secretary of State did not object to this further complaint being heard by the court.

3

Also in issue were certain claims in relation to which permission had been refused by Collins J when he granted permission on 26 February 2013 for the claim in relation to Sections E-LTRP and EX.1, referred to above. Mr Malik renewed his application for permission in relation to those other claims at the hearing, although in the event he said very little about them. The further claims are (i) that Rule 276ADE of the Immigration Rules (which is another rule inserted into the Rules by HC 194), relating to private life, is unlawful for being incompatible with Article 8; and (ii) that Rule 276ADE and Section EX.1 "are unlawful for being incompatible with the constitutional fundamentals of rule of law, independence of judiciary and parliamentary sovereignty".

4

I can state shortly at the outset that I refuse permission to apply for judicial review in relation to the further claims at (ii). Mr Malik said nothing to lead me to suppose that the reasons given by Collins J for refusing permission on that ground were invalid. I agree with Collins J that the new rules in no way call in question or undermine the rule of law, the independence of the judiciary or parliamentary sovereignty. The Secretary of State is entitled to set out her view, reflected in the guidance to her officials in the new rules, how Article 8 should operate. She does not trespass upon the sovereignty of Parliament in doing so. It continues to be for the courts to ensure that the law is properly respected by the executive; any failure by the executive to do that will lead to relief being granted by the courts.

5

In relation to the further claim at (i), I do grant permission. Rule 276ADE concerns private life. Although in general the scope for a possible mismatch between the operation of Rule 276ADE and Article 8 in a particular case may be less than in the case of Section E-LTRP and Section EX.1 (which deal with family life), I consider that it still exists. Therefore, in my opinion, there is sufficient similarity between the arguments put forward to challenge the lawfulness of Section EX.1, for which permission has been granted, and the arguments in relation to the lawfulness of Rule 276ADE to warrant the grant of permission in relation to the latter as well.

6

In this judgment, therefore, I focus on the claim in relation to EX.1 and Article 8 for which permission was granted by Collins J, the claim in relation to Rule 276ADE and Article 8 for which I grant permission and on the additional claim relating to the particular decision in the Claimant's case.

The new rules in Section E-LTRP, Section EX.1 and Rules 276ADE to 276CE

7

Article 8 provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

8

The new rules introduced into the Immigration Rules by HC 194 are the product of work conducted by the Home Office to produce rules in a form which addresses more explicitly than the Immigration Rules did up till July 2012 the factors which, according to domestic and Strasbourg case-law, weigh in favour of or against a claim by a foreign national based on Article 8 to remain in the United Kingdom. The extent of the non-alignment or mismatch between the Immigration Rules prior to these changes and the approach required by Article 8 meant that many such claims had to be determined outside the Immigration Rules, by reference to the residual discretion of the Secretary of State to grant leave to remain in the United Kingdom outside the Rules. As explained in the witness statement of Clive Peckover on behalf of the Secretary of State:

"This was not considered conducive to clear, consistent and transparent decision-making, which, outside of exceptional circumstances, should properly reflect the Immigration Rules set by the Secretary of State and approved by Parliament. It also led, under the existing policy, to the perverse outcome that many in-country applicants (around 9,500 in 2010) who did not meet the requirements of the Immigration Rules but who could establish an Article 8-based claim to remain in the UK, received in some respects a better outcome (Discretionary Leave with recourse to public funds) than those applicants who met the requirements of the rules, who were granted leave to remain under the rules without such recourse."

9

A consultation was conducted in relation to a proposed set of new rules designed to align more closely the Immigration Rules and the approach required under Article 8. On 13 June 2012, the Statement of Changes in Immigration Rules (HC 194) was laid before Parliament and the Impact Assessment, Policy Equality Statement and Statement of Compatibility with the ECHR relating to HC 194 were published.

10

On 19 June 2012 the House of Commons debated and unanimously agreed a Government motion on the overall approach to Article 8 reflected in the new rules. The new rules were also debated in the House of Lords on 23 October 2012. The rules were formally made under the negative resolution procedure prescribed in the Immigration Act 1971. They came into force on 9 July 2012.

11

New paragraphs 276ADE to 276CE of the Immigration Rules, introduced by HC 194, provide as follows:

"Private life

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and

(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or

(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE.

Leave to remain on the grounds of private life in the UK

276BE. Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE are met. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate.

Refusal of limited leave to remain on the grounds of private life in the UK

276CE. Limited leave to remain on the grounds of private life in the UK is to be refused if the Secretary of State is not satisfied that the requirements in paragraph 276ADE are met."

12

Appendix FM to HC 194 provides in relevant part as follows:

"...

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