R Rajibul Islam v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Aikens,Lady Justice Black,Lord Justice Underhill
Judgment Date27 March 2015
Neutral Citation[2015] EWCA Civ 312
Docket NumberCase No: C2/2014/0252
CourtCourt of Appeal (Civil Division)
Date27 March 2015

[2015] EWCA Civ 312

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE ALLEN

JR/1070/2013

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Aikens

Lady Justice Black

and

Lord Justice Underhill

Case No: C2/2014/0252

Between:
The Queen on the Application of Rajibul Islam
Appellant
and
The Secretary of State for the Home Department
Respondent

Zane Malik (instructed by MLC Solicitors) for the Appellant

Mary Glass (instructed by The Treasury Solicitor) for the Respondent

Hearing dates: 06/02/2015

Lord Justice Aikens
1

This is an appeal from the decision of Upper Tribunal Judge Allen dated 7 January 2014 whereby he refused to grant permission to seek judicial review of the decision of the Respondent ("the SSHD") dated 17 July 2013 refusing Rajibul Islam, the appellant, leave to remain in the UK. The sole basis on which the appellant had argued that he should be entitled to remain was that removal would be a disproportionate interference with his rights to a private life under Article 8 of the European Convention on Human Rights ("ECHR"). Laws LJ gave permission to appeal the decision of the Upper Tribunal on paper on 5 August 2014. The appellant submits that this court should grant permission to bring the judicial review proceedings and should allow the claim and set aside the SSHD's decision of 17 July 2013 as being unlawful.

The background facts

2

The background facts are not in dispute. They can be summarised thus: the appellant is a national of Bangladesh. He was born on 24 December 1982 and so is now 32 years old. He first entered the UK with leave to do so as a student on 8 February 2003. He was granted leave to remain as a student a further four times, the last leave being granted until 31 January 2009. Prior to the expiry of that last period the appellant made a further application to remain, again as a student. On 25 May 2010 the SSHD refused that application.

3

The appellant had a right of appeal and he exercised it. The appeal was rejected by the First Tier Tribunal and permission to appeal from that rejection was refused on 29 October 2010. The appellant's appeal rights were therefore exhausted as from 10 November 2010.

4

The appellant has remained in the UK since then. He is an "overstayer". On 6 June 2012 the appellant was arrested and detained for removal. He was served with forms 1S.151A and Part 2 by the SSHD as an "overstayer".

5

On 15 June 2012 the appellant applied for leave to remain using form FLR(O) version 06/2012, which is for applications for leave to remain based on various criteria not covered by other types of form, where the application is made after 1 June 2012. In essence the appellant relied on an "established right to private life in the UK under Article 8" of the ECHR, so that it would be a disproportionate interference with those rights to remove him. The letter that was sent in support of the application by the appellant's solicitors asserted that he had had a private life in the UK since 2003, ie for over 9 years; that he had no job or property in Bangladesh; that he had established a private life in the UK during the 9 years he had been in the UK and so regarded the UK as his "homeland"; that he was not a burden on the UK state nor otherwise undesirable and that he would suffer hardship if he were to be sent back to Bangladesh.

6

In addition the letter asked the SSHD to exercise her discretion, even if no specific criteria for leave to remain were fulfilled if the individual circumstances were "so compelling" that it would be considered appropriate to grant some form of leave. By implication, it was argued that the appellant would fall within this category if he did not fall within any others.

7

The evidence in support of the application was a short statutory declaration by the appellant's cousin, Mrs Rajarajan, stating that she had financially and emotionally supported the appellant in the UK since she arrived in the UK, although that date is not given. Mrs Rajarajan stated that the appellant could reside with her and her husband in their rented property in East Ham, without paying any rent or utility bills.

8

On 9 July 2012 the appellant was released from detention with reporting conditions.

9

The SSHD refused the appellant's application on 17 July 2013. The appellant wishes to challenge this decision by way of Judicial Review. The appellant's solicitors sent a pre-action letter on 6 August 2013 and the SSHD responded to it in a letter from the Home Office dated 7 September 2013. In that letter the Secretary of State noted that the appellant had requested that a removal decision be made. It pointed out that the Secretary of State was not obliged to make a removal decision despite the appellant's request. The letter of 7 September 2013 continued:

"The Secretary of State will only make a removal decision where there is a request to do so and, where: …

…………………….

? There are other exceptional and compelling reasons tmake a removal decision.

Based on the facts of your case, the Secretary of State has decided not to make a removal decision at present. If you believe that your client does meet these criteria you should write to us enclosing evidence that you meet the criteria and we will reconsider this decision".

10

The Judicial Review claim was issued on 5 September 2013. Jeremy Baker J refused permission to seek Judicial Review on 17 October 2013. The appellant then renewed his application and permission was refused at an oral hearing before Upper Tribunal Judge Allen on 7 January 2014.

The SSHD's decision letter of 17 July 2013 refusing the application for leave to remain.

11

This decision letter ("the 2013 decision letter") begins by stating: "in refusing your application consideration has been given to your private life under Article 8 which from 9 July 2012 falls under paragraph 276ADE of the rules" which is a reference to a paragraph in the Immigration Rules that came into force on 9 July 2012 as a result of the Statement of Changes in the Immigration Rules (HC 194). I will call those "the 2012 IR". The 2013 decision letter went on to consider the "requirements" of those rules. It concluded that the appellant did not meet the requirements of paragraph 276ADE, as summarised in the letter.

12

Under the heading "Exceptional Circumstances", the 2013 decision letter stated that the SSHD had considered whether the appellant's application "raises or contains" any "exceptional circumstances, which, consistent with the right to respect for private and family life contained in Article 8 of the ECHR might warrant consideration by the Secretary of State of a grant of leave to remain in the UK outside the requirements of the Immigration Rules". The letter concluded that there were none.

13

The 2013 decision letter continued:

"It is noted that you have a cousin in the UK however this does not constitute family life as set out in Appendix FM of the Immigration Rules. Your application for leave to remain in the United Kingdom is therefore refused.

An application was made on your behalf on 15 June 2012. However, your leave to remain [as a student had] expired. You therefore did not have leave to remain at the time of your application.

Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis to stay here. There is no right of appeal against the refusal".

The decision of Upper Tribunal Judge Allen

14

UT Judge Allen gave a careful judgment upon the renewed oral application for permission to bring Judicial Review proceedings. He noted that it was common ground that the appellant had been unlawfully within the UK since his application for permission to appeal the SSHD's refusal to grant leave to remain as a student had itself been rejected in October 2010. Thus, the appellant had been unlawfully in the UK since 8 October 2010, a period of three years. Judge Allen then referred to the basis upon which the appellant had made his application for leave to remain on 15 June 2012. He noted that the 2013 decision letter had considered the matter under the 2012 IR. The judge then considered the relationship of Article 8, the Immigration Rules and the case law and he referred in particular to the very well known cases of Huang v Secretary of State for the Home Department [2007] 2 AC 167, (" Huang"), MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 (" MF (Nigeria)") and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) (" Nagre").

15

Judge Allen said that this was the context in which the SSHD's decision had to be viewed. He concluded that the SSHD was entitled to come to the view that there was no family life with the appellant's cousin. He noted that there was very little reference to private life in the letter accompanying the application of 15 June 2012 other than the facts I have summarised above. The judge regarded the reference to "exceptional circumstances" in the 2013 decision letter as not referring to a legal test but a "proper response" to the matters that had been put before the SSHD. The judge noted that further evidence of a private or family life was before him but that had not been before the SSHD so could not be relied on in relation to the application for Judicial Review.

16

Judge Allen summed up the position at paragraph 11 of his reasons. He stated:

"But with regard to the particular matter before me, I see no arguable public law error in the respondent's assessment of these matters and nor for the sake of completeness do I think there is any arguable...

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6 cases
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    ...was a post September 6 2012 case as are the present cases. I was also referred to two other cases R (on the application of Rajibul Islam) v Secretary of State for the Home Department [2015] EWCA Civ 312 decided on 27 March 2015. At paragraph 23 Lord Justice Aikens held that the Court of App......
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