R (SYED) v Secretary of State for the Home Department: Harshadbhai Gordhanbhai Patel v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 13 August 2010 |
| Neutral Citation | [2010] EWHC 2888 (Admin) |
| Date | 13 August 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7039/2009 |
[2010] EWHC 2888 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Charles George QC
(Sitting as a Deputy High Court Judge)
CO/7039/2009
MR Z MALIK (Instructed By MLC SOLICITORS) Appeared On Behalf Of The Claimant
MR M BARNES (Instructed By THE TREASURY SOLICITOR) Appeared On Behalf Of The Defendant
(As approved)
In this case the claimant, by judicial review proceedings commenced on 6 July 2009, challenges the Secretary of State's decision of 22 May 2009 to refuse indefinite leave to remain. The situation appears to be that the claimant has not yet been required to leave; whether he will be is for another day.
The claimant is a Pakistani and he is now 30. He came here in 1998 as a student and there were various extensions of leave to remain which lasted until 30 June 2009. There were some gaps in that one of his leaves to remain expired on 1 October 2003 and he did not make his application for an extension until 28 October 2003. It was eventually granted on 9 December. Again, in 2004 he had leave to remain until the end of November but he did not actually submit his application for an extension until 8 December 2004, so that there was a one week period then when he was not lawfully resident in the country.
The claimant puts forward in his Grounds three contentions. The first is that the Secretary of State has misconstrued paragraph 276B of the Immigration Rules; secondly, legitimate expectation and that the decision was conspicuously unfair; and thirdly, that the decision was irrational and perverse. The matter came before the single judge on 20 November 2009 and Dobbs J thought that, in the light of the gaps, the decision was not arguably unreasonable or irrational.
There was a renewal on 25 November and the way in which it has been argued before me this morning is a little bit different from the way the matter appeared when it was before Dobbs J. First of all, what is said is that the relevant paragraph, 276B, and I think 276A more particularly, need to be read in a way which recognises the claimant's Article 8 rights and that, despite the decision of the Court of Appeal in MD (Jamaica) and GE (Canada) v Secretary of State for the Home Department [2010] EWCA Civ 213, that remains an approach open to this court for two reasons. First, because that point was expressly not taken in the Jamaica case, and I was taken to a passage in the judgment (paragraph 20) where it was made plain that that particular point was not being taken and it was not being taken because it was going to be the subject of argument in another case in the Supreme Court; and secondly, my attention is drawn to the recent authority in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 which is relied upon for advancing the law in respect of the legal status of the Immigration Rules. In his judgment in that case, and in particular paragraph 17, Sedley LJ said that the immigration rules can be:
“no more immune to challenge for abuse of power or for violation of human rights than any other exercise of the prerogorative power”.
What is suggested is that I should “read down” the stark language of the two parts of the relevant paragraph of the Immigration Rules and, in that way, circumvent the rigour of MD (Jamaica).
So far as Ground 2, there is no longer any attempt to pursue the legitimate expectation ground. If I may say so, that is plainly right. But what is said is that the latter part of that ground, which was conspicuous unfairness, runs together with Ground 3 and that, in the circumstances of this case, the particular decision was unfair or irrational because it was taken without seeking from the claimant information as to whether there was any explanation for the two relatively short gaps in his lawful residence which the Secretary of State was minded to rely on, and did rely on, in the decision which was eventually reached and which is under challenge.
Responding to that matter for the Secretary of State, Mr Barnes, who I asked to concentrate on the unfairness and irrationality ground, contends that there is no requirement on the Secretary of State to seek explanations from claimants in the position...
To continue reading
Request your trial
-
R Syed v Secretary of State for the Home Department
...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/0817......
- Ps (Ap), Petitioner