R Samia Akter v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeStuart-Smith LJ,Newey LJ
Judgment Date13 May 2021
Neutral Citation[2021] EWCA Civ 704
Docket NumberCase No: C2/2019/2289

[2021] EWCA Civ 704

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE OWENS

JR/941/2019

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Newey

Lord Justice Coulson

and

Lord Justice Stuart-Smith

Case No: C2/2019/2289

Between:
The Queen on the application of Samia Akter
Appellant
and
Secretary of State for the Home Department
Respondent

Sonali Naik QC and Rajiv Sharma (instructed by Saint Martin Solicitors) for the Appellant

Zane Malik QC (instructed by Government Legal Department) for the Respondent

Hearing date: 6 May 2021

Approved Judgment

Stuart-Smith LJ

Introduction

1

On 19 December 2018 the Respondent refused the Appellant's application for indefinite leave to remain [“ILR”] in the United Kingdom. This is an appeal against the decision of Upper Tribunal Judge Owens, made on 9 August 2019, by which she refused the Appellant permission to bring judicial review [“JR”] proceedings challenging the Respondent's decision.

2

The Appellant is represented by Ms Naik QC and Mr Sharma. The Respondent is represented by Mr Malik QC. One of their more optimistic submissions at the outset was that this court might feel able to determine the substantive issues that would arise on the appeal if the refusal of leave was to be overturned. It became increasingly clear that this was not a feasible suggestion, not least because, even after a confetti of additional documents were produced in the course of the hearing, it is apparent that there may be other relevant documents outstanding and that there could be relevant evidence that is not before us. In these circumstances, the issue is whether the Appellant's proposed appeal is reasonably arguable; and we must decide that issue on the (limited) information that is now available.

The Respondent's decision of 19 December 2018

3

The Appellant's application for ILR was submitted on 12 November 2018 on the basis of long residence. It was considered by the Respondent by reference to Paragraph 276B of the Immigration Rules, which is agreed to be the appropriate and relevant rule. The relevant provisions of the rule for present purposes are as follows:

“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i)(a) he has had at least 10 years continuous lawful residence in the United Kingdom.

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where —

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; …”

4

The Respondent's decision letter set out the Appellant's immigration history as follows:

“You entered the United Kingdom on 7 March 2008 with a student visa valid from 11 February 2008 until 31 May 2011.

On 20 May 2011 you applied for leave to remain as a tier 4 general student, you were granted leave to remain valid until 31 January 2013.

On 31 January 2013 you applied for leave to remain as a tier 4 general student, on 15 May 2013 this application was refused with a right of appeal. On 3 June 2013 you lodged an appeal, on 13 June 2014 your appeal was refused. On 13 August 2014 your appeal rights were exhausted.

On 9 September 2014 you applied for leave to remain on the basis of family and private life, on 24 November 2014 this application was refused with no right of appeal.

On 24 February 2015 you applied for leave to remain on the basis of human rights — article 3&8, on 11 May 2015 this application was refused, on 27 May 2015 you lodged an appeal, on 18 May 2016 your appeal was allowed. On 9 June 2016 you were granted leave outside the rules valid until 8 December 2018.

On 12 November 2018 you applied for indefinite leave to remain on the basis of long residence (10 years).”

5

The Respondent's reasons for refusal were concisely set out:

“Consideration has been given to your application and it is noted from your immigration history that you had lawful leave following your arrival in the United Kingdom on 7 March 2008 until 31 January 2013.

You did seek to vary your leave on 31 January 2013 however this application was refused with a right of appeal, following an unsuccessful appeal your appeal rights were exhausted on 13 August 2014. It is noted you made a further attempt to vary your leave on 9 September 2014 and 24 February 2015 however these applications were submitted out of time. It must be pointed out that any time spent following the submission of an out of time application awaiting for consideration of the application is not considered lawful even if that application is subsequently granted. Therefore you were without valid leave from 13 August 2014 when your appeal rights were exhausted, until your next grant of leave to remain on 9 June 2016, a period of 665 days. As such your period of continuous lawful residence is considered to have been broken at this point.

As you have remained without any leave to enter or remain between 13 August 2014 and 9 June 2016 you cannot demonstrate 10 years continuous lawful residence in the UK and cannot meet the requirements of the Immigration Rules with reference to Paragraph 276B(i)(a).”

6

Having reached that conclusion on the application of the Rule, the Respondent considered whether there were grounds for exercising a discretion in favour of a grant of ILR and decided that there were none. ILR was refused but limited leave granted.

7

These judicial review proceedings were issued on 18 February 2019. With the leave of the court the Appellant's grounds have been amended. The central feature of the Appellant's case is an attempt to demonstrate an unbroken chain of events and decisions starting with the Appellant's earlier application for leave to remain on 9 September 2014 and ending with a grant of limited leave to remain on 9 June 2016. For the purposes of this hearing, Mr Malik conceded that, if the Appellant could arguably show an unbroken line between these two events, her Appeal should succeed and the case should be remitted to the Upper Tribunal; but he argued trenchantly that the Appellant's case was unarguable. I would accept his concession as properly made.

8

In order to see if the case is arguable and to explain the issues that arise on this appeal it is necessary to trace the links that are said to constitute the Appellant's chain.

The factual background

9

It is convenient to take as the starting point the fact that a previous application by the Appellant for leave to remain was made in January 2013 and refused with a right of appeal on 15 May 2013. The Appellant exercised her rights of appeal but became appeal rights exhausted, so that her leave to remain expired on 13 August 2014. That is the first critical date, from which all else flows.

10

On 9 September 2014, less than 28 days after her leave had expired, the Appellant applied for leave to remain for herself and for her young son. It is common ground that this application was a valid application in proper form that was brought within the rules and relying upon the applicants' human rights pursuant to Article 8. It was refused on 24 November 2014. That refusal did not give rise to a right to appeal to the Tribunal, with the result that the Appellant's attempt to do so was struck out for want of jurisdiction. It did not give rise to a right of appeal to the Tribunal because it was not an “immigration decision” within the meaning of the version of s. 82 of the Nationality, Immigration and Asylum Act 2002 that was then in force.

11

By a Pre-action Protocol letter dated 5 December 2014 [“the 2014 PAP Letter”] the Appellant challenged the decision of 24 November 2014. The 2014 PAP Letter alleged that the Respondent's refusal of the application made on 9 September 2014 was illegal because the Respondent had not considered her discretionary powers and was irrational because the Respondent had failed to have regard to the Appellant's compassionate circumstances.

12

The Respondent replied to the 2014 PAP Letter on 29 January 2015 by a letter (wrongly) dated 18 December 2014, which treated the 2014 PAP Letter as a request for reconsideration of her 24 November 2014 decision and a grant of leave. The letter rejected the allegations made in the 2014 PAP Letter and did not alter the Respondent's decision. But it stated that the Appellant's case met the criteria for requesting a removal decision (which would carry with it a right of appeal) and stated that “[t]his will therefore be referred to a removals casework team who will contact you in due course.” This was done on the Respondent's initiative as the Appellant had not requested a removal decision, though the Respondent's letter incorrectly said that she had. She did not request a removal decision at any stage — the most that can be said is that she went along with the steps that the Respondent instituted. The potential significance of a removal decision was that it would give rise to a right of appeal to the Tribunal under the statutory provisions then in force.

13

First, however, on 23 February 2015 the Appellant issued JR proceedings challenging the Respondent's 24 November 2014 decision as “wrong, unreasonable and disproportionate” and an unlawful infringement of her Article 8 rights. I shall refer to these proceedings as “the First JR Proceedings” to distinguish them from the present proceedings.

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