R Syed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,Lord Justice Elias |
| Judgment Date | 07 September 2011 |
| Neutral Citation | [2011] EWCA Civ 1059 |
| Date | 07 September 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/2033; C5/2011/0055 |
[2011] EWCA Civ 1059
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Charles George QC (sitting as a Deputy High Court Judge)
[2010] EWHC 2888 (Admin), CO/7039/2010
ON APPEAL FROM UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER
Mr Justice Cranston and Senior Immigration Judge Gill
IA/08177/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Thomas
Lord Justice Elias
Case No: C4/2010/2033; C5/2011/0055
Mr Zane Malik (instructed by Malik Law Chambers Solicitor) for the Appellants
Mr Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 21 st July 2011
Sir Anthony May President of the Queen's Bench Division:
This is the judgment of the court.
Introduction
These two immigration matters, a judicial review claim ( R (Syed) v Secretary of State) against a decision of the Secretary of State for which permission was refused in the Administrative Court, and a second appeal ( HP (India) v Secretary of State) against a decision of the Upper Tribunal Immigration and Asylum Chamber, both fell apart during the course of the hearing before this court. They were both examples of cases which came forward on incomplete relevant information or with incomplete attention to information which was available; and where it was supposed that points which had not featured before the lower court or tribunal could be introduced into argument without proper regard for any necessary structure which the proceedings before this court should require. It emerged that neither case has any real arguable merit, as Mr Zane Malik, who appeared on behalf of both Mr Syed and Mr Patel, was constrained to accept.
On 14 th December 2010, Sir Richard Buxton considered Mr Syed's grounds of appeal against the Administrative Court's refusal of permission to bring judicial review proceedings. He wrote that the grounds of appeal did not make out a case and permission was not granted to pursue them. He noted, however, that the skeleton submission drew attention to paragraph 46 of the judgment of Sedley LJ in this court in Pankina v Secretary of State [2010] EWCA Civ. 719, which he found "difficult to interpret other than as a general ruling that, in any use by the Secretary of State of powers of expulsion under the Immigration Rules, attention must be paid to the Article 8 rights of the applicant, either explicitly in the content of the rule (not this case) or by express consideration by the decision-maker (not this case either)". That enquiry was not, as the judge thought, excluded by MD (Jamaica) v Secretary of State [2010] EWCA Civ. 213, because the point was not resolved in that appeal. Sir Richard Buxton granted limited permission for judicial review on that basis.
Arising out of this, the main submission on behalf of Mr Syed (and the only one for which permission has arguably been granted) is that the Immigration Rules should, so far as is relevant to his case, be read and given effect under section 3 of the Human Rights Act 1998 so as to make them compatible with his rights under Article 8 of the European Convention on Human Rights; and that, upon such reading, the Secretary of State acted unlawfully in deciding on 22 nd May 2009 to refuse his application under the Immigration Rules to remain in the United Kingdom on the basis of his continued residence in the United Kingdom for 10 years. The submission is that paragraphs 38 and 39 of the judgment of Laws LJ in AM (Ethiopia) v Entry Clearance Officer [2009] Imm AR 2 and paragraphs 41 to 47 of Sedley LJ's judgment in Pankina are inconsistent; and that Sedley LJ's judgment should be preferred as superseding that of Laws LJ. This is on the face of it a respectable argument, although we do not accept it (see below). But we note here that AM (Ethiopia) was not referred to in the judgment in Pankina although it was cited to the court; and that, if there were an inconsistency, AM (Ethiopia) should have been binding in Pankina. The difficulty with the superficially respectable argument is that it now appears that, on the facts as we now know them, Mr Syed's Article 8 rights have not even arguably been infringed. It was on our discovery of this, that his case fell apart.
Mr Syed's application for Indefinite Leave
Mr Syed is a national of Pakistan, born on 19 th May 1980, who came to the United Kingdom on 1 st October 1998 as a student. Since then, he has been lawfully present in the United Kingdom, except for two periods when he was here without leave because he had failed to apply in time for the renewal of his limited leave to remain. On each occasion, he applied after the expiry of the previous leave, and he was granted a further limited leave. One such period of leave was due to expire on 30 th June 2009, when the Secretary of State decided, on 22 nd May 2009, not to grant his application for indefinite leave to remain under the Immigration Rules.
The periods during which Mr Syed was in the United Kingdom without leave were between 1 st October and 9 th December 2003 inclusive (70 days) and between 1 st and 8 th December 2004 inclusive (9 days). In an affidavit sworn on 24 th June 2009, he explained these gaps, so far as he was able to remember, as relating, in 2003, to difficulties in obtaining signed papers from his University's school office, and, in 2004, to a medical condition. He stated that he had always been law abiding and conscientious about his immigration status. He had tried to submit applications on time, but on these occasions there had been difficulties. Both Dobbs J, who refused permission for judicial review on the papers, and Charles George QC sitting as a deputy High Court Judge, who refused permission after an oral hearing, agreed with the Secretary of State that these reasons were unsupported by any evidence other than Mr Syed's speculative recollection.
Mr Syed had written to the Immigration Authorities on 22 nd October 2008 in support of his application for indefinite leave to remain. There was one paragraph in part explanation of why he had been late making earlier applications; and three short paragraphs in support of his character, education and his past and future part time work. Mr Malik, on his behalf, attempted to elevate this into an assertion of Article 8 rights in support of his application, which it plainly was not. The Secretary of State refused his application on 22 nd May 2009, because he had failed to show that he had completed 10 years continuous lawful residence in the United Kingdom because of the two gaps. The letter stated explicitly that he was not required to leave the United Kingdom as a result of the decision. The question of interference with his private life did not therefore arise. He does not assert a family life in the United Kingdom.
We are told that, before 30 th June 2009, he made an application to enable him to read for a Masters degree. Leave to remain for 3 years was granted to preserve his legal status with effect from 1 st September 2009 and to run to 15 th August 2012. In the light of this, Mr Malik accepted that Mr Syed has and had no case that his Article 8 rights were infringed by the decision of 22 nd May 2009, so that a necessary factual plank of this appeal is removed and the appeal must fail. The Pankina issue is entirely academic in his case and, as will appear, not in issue in the HP (India) case. We have nevertheless decided to address that issue, since it was argued before us and since the whole purpose of Sir Richard Buxton giving permission was to enable the point to be considered.
The Immigration Rules
The Immigration Rules are made by the Secretary of State and approved by Parliament under section 3(2) of the Immigration Act 1971. They are rules as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons who are required to have leave to enter, including rules as to the period for which leave is to be given and the conditions to be attached in different circumstances.
By paragraph 276C and D of the Rules, indefinite leave to remain on the ground of long residence may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met; but it is to be refused if the Secretary of State is not so satisfied. One of the requirements of paragraph 276B is that the applicant has had at least 10 years continuous lawful residence in the United Kingdom. "Continuous residence" is defined in paragraph 276A(a) as residence in the United Kingdom for an unbroken period, for which purposes absence from the United Kingdom for a period of 6 months or less is not considered to break the period of lawful residence if the applicant has existing limited leave throughout the period of absence. "Lawful residence" is defined by paragraph 276A(b) to include continuous residence pursuant to existing leave to enter or remain. Mr Syed did not qualify for indefinite leave to remain under these rules because, by reason of the two gaps, he had not had 10 years continuous lawful residence in the United Kingdom.
The Secretary of State issues Immigration Directorates' Instructions to her immigration caseworkers. Paragraph 2.3 of the section dealing with long residence in the version of these instructions issued in April 2009 deals with continuous lawful residence. Paragraph 2.3.3 is headed "Breaks in lawful residence and the use of discretion". This states that caseworkers should be satisfied that the applicant has acted lawfully throughout the entire period and...
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