R Rafiq v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Philip Mott |
Judgment Date | 07 May 2014 |
Neutral Citation | [2014] EWHC 1654 (Admin) |
Court | Queen's Bench Division (Administrative Court) |
Date | 07 May 2014 |
Docket Number | CO/2821/2013 |
[2014] EWHC 1654 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Philip Mott QC
(Sitting as a Deputy High Court Judge)
CO/2821/2013
Ms C Robinson (instructed by Abbotts Solicitors) appeared on behalf of the Claimant
Ms K Olley (instructed by Treasury Solicitors) appeared on behalf of the Defendant
THE DEPUTY JUDGE: The claimant is a Pakistani national, born on 8 September 1982. On 18 November 2006 he was granted leave to enter the UK as a student, which was in due course extended to 31 March 2009. On 30 October 2008, some months before the expiry of his student leave, he applied for leave to remain for Post-Study Work. This remained outstanding until 7 January 2011, when it was refused. He appealed, but was unsuccessful. He became appeal rights exhausted on 26 September 2011.
Meanwhile, in September 2009, he met Natasha Fiona Knight, a British citizen born and brought up in the UK. On 12 July 2010 he was granted a Certificate of Approval for their marriage, which made it clear that it was not a grant of leave to remain in the UK. They married on 14 September 2010 and have lived together since then. A statement from his wife makes clear that they wish to have children in due course.
On 19 April 2011 the Claimant applied for leave to remain as a spouse. This was rejected as invalid on 27 April 2011. It had to be resubmitted on three occasions before being accepted as valid application. The last submission was sent under cover of a letter dated 12 October 2011, but apparently not received until 28 October 2011. It was acknowledged as valid on 1 November 2011.
On 9 July 2012 the Immigration Rules were substantially amended in relation to applications by family members. On 7 December 2012 a decision letter was sent refusing the claimant's application under the new Rules. Permission to apply for judicial review of this decision was granted by Leggatt J on 11 September 2013 and was followed by a supplementary decision letter on 12 December 2013 also refusing the application.
At the start of the hearing before me Ms Robinson, for the Claimant, applied for permission to rely on Amended Grounds, which challenged the supplementary decision, and also on a matter raised in her skeleton argument in relation to the very recent decision in Edgehill v SSHD [2014] EWCA Civ 402, in which judgment was handed down on 2 April 2014. No objection was made to either application, and I allowed them.
The first decision letter, dated 7 December 2012, gives reasons which may be summarised shortly as follows:
I) The Claimant had previously tried to obtain leave to remain using false documentation.
Ii) The Defendant was not satisfied that the Claimant had provided sufficient evidence of his English language requirements, in accordance with paragraph 284(ix) of the Immigration Rules.
Iii) The Claimant's family life had been considered in relation to Article 8 of the ECHR under Appendix FM of the Immigration Rules.
Iv) The Claimant had overstayed for a period in excess of 28 days and so failed to meet the requirement of paragraph E-LTRP 2.2 of the Rules.
V) Exception EX.1 did not apply because the Claimant had failed to show why the relationship could not continue in Pakistan.
Vi) The Claimant's right to private life had been considered under Rule 276ADE, but failed.
The second decision letter, dated 12 December 2013, asserts that there is no requirement for an Article 8 case law assessment. It deals in more detail with the question of whether the relationship can continue in Pakistan and considers that the couple can freely enter and leave Pakistan, there being no evidence to the contrary. The Claimant's wife does not speak Urdu or wear a hijab, but can be supported by her husband while learning the language and customs of Pakistan. The Claimant and his wife wish to remain in the UK where they have family and friends but can maintain contact via modern communication tools. All in all, the hardships which would undoubtedly be caused to the Claimant's wife by a move to Pakistan do not amount to insurmountable obstacles or exceptional circumstances.
The Claimant makes a number of challenges to these decisions, but in essence they amount to four.
I) The Defendant applied the new Rules rather than the old Rules, contrary to the Statement of Changes as interpreted in Edgehill.
Ii) It was unlawful for the defendant to consider and find that it would be reasonable for the Claimant's wife to move to Pakistan, as she is an EU citizen and could not be required to move out of the EU. For this proposition the Claimant relied on the Upper Tribunal decision in Sanade v SSHD [2012] UKUT 00048 (IAC).
Iii) The decisions that there were no insurmountable obstacles were irrational given the extent of the Claimant's wife's difficulties if she moved on Pakistan.
Iv) The decisions were irrational in finding that there were no exceptional circumstances justifying the grant of leave outside the rules.
Application of the New Rules
Edgehill was concerned with two applications for leave based on long residence. The old Rules required a period of 14 years residence; the new Rules specified 20 years. The Court of Appeal concluded that an application made before the change in the rules could not be rejected in reliance on the failure to achieve the 20-year threshold, but only if the new rules were relied upon as a material consideration. Thus, in one case, where the appellant had been resident in the UK for more than 14 years but less than 20 years, her appeal succeeded. In the other case, where the appellant had been resident in the UK for less than 14 years, her appeal failed.
In the present case the primary requirements for an extension of stay as the spouse of a person present and settled in the UK are set out in paragraph 284 of the Rules. This existed prior to the July 2012 changes and was unchanged by the amendments then. It was applied to the Claimant's case, but he failed to satisfy the requirements. No challenge is made to this assessment. It is accepted, therefore, that prior to July 2012 his case would then have been considered outside the Rules, under the general law relating to Article 8 claims.
After the July 2012 changes, Article 8 claims to family life have been considered under Appendix FM. This is intended to reflect European jurisprudence in relation to Article 8. It is, as the Court of Appeal concluded in MF (Nigeria) v SSHD [2014] 1 WLR 544, "a complete code". Nevertheless, it is accepted that there may be cases which would come within Article 8 but which are not covered by Appendix FM. These will be brought into consideration under the new Rules by the power to depart from them in "exceptional circumstances".
Accordingly, at least in theory, the result should be the same whether considered before or after the July 2012 changes. In both cases the overriding test is that of Article 8. As a result this is not a case like Edgehill where there is a clear substantive...
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