R Zoje Kola v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Maura McGowan QC |
| Judgment Date | 06 June 2013 |
| Neutral Citation | [2013] EWHC 1434 (Admin) |
| Date | 06 June 2013 |
| Docket Number | Case No: CO/1710/2012 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 1434 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Maura McGowan QC
Case No: CO/1710/2012
Daniel Sills (instructed by Scudamores Solicitors) for the Claimant
Zane Malik (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 13 March 2013
Summary of Issues
The Claimant sought leave to challenge the decision by the Secretary of State to refuse to review her case as part of the general review of "legacy cases" being carried out by the Casework Resolution Directorate.
The original claim was based on delay on the part of the Secretary of State in deciding her further representations under the Casework Resolution Directorate's review of legacy cases. It was on the ground of that delay that permission was granted by Mitting J on 18 September 2012. The delay in "responding constructively" was inexplicable, further the failure to deal with the underlying claim was "arguably unlawful".
Following the decision of 18 September 2012 the Secretary of State decided to reject the Claimant's submissions and refused to treat them as a fresh claim for the purposes of paragraph 353 of the Immigration Rules.
Leave to challenge that rejection is now sought. Leave to amend is granted by consent.
The First Issue : Whether the Secretary of State's failure to consider the Claimant's case under Paragraph 395C of the Immigration Rules and to grant her indefinite leave to remain in the United Kingdom is "conspicuously unfair" and frustrates her legitimate expectation? The Claimant submits that it was "conspicuously unfair" that her submissions should be considered under 353B rather than the more generous terms of 395C. It is submitted that her case was not considered under 395C because of excessive and therefore unlawful delay.
The Second Issue : Whether the Secretary of State's decision under Paragraph 353B of the Immigration Rules is irrational and unlawful? It is submitted that the decision under 353B was unlawful. It is said to have been based on mistakes of fact.
The Third Issue : Whether the Secretary of State's conclusion that the Claimant's submissions based on Article 8 do not amount to a fresh claim is irrational and unlawful? It is also, it is said, based on a failure to take relevant factors into account.
The Claimant seeks the following relief:
a) Declarations that the Defendant's decision of 18 September 2012 is unlawful, and that the Claimant is entitled to Indefinite Leave to Remain, or in the alternative, an in-country right of appeal;
b) A quashing order in relation to the decision of 18 September 2012;
c) A mandatory order that the Defendant grant the Claimant Indefinite Leave to Remain or in the alternative, an in-country right of appeal;
d) Costs;
e) Any other relief the Court considers appropriate.
There is a detailed chronology of events provided by the Defendant, which is reproduced below.
Chronology
The Claimant is a citizen of Albania and was born on 27 May 1976.
The Legal Framework
| Dates | Events |
| 08.02.03: | The Claimant and her husband, Gafur Kola were apprehen hidden in a lorry by the police. |
| 09.02.03: | The Secretary of State issued direction for the couple's removal from the United Kingdom, as illegal entrants, on 11.02.03 (these were deferred and reset for 14.02.03). |
| 12.02.03: | The couple claimed asylum (and therefore removal directions were deferred). |
| 30.05.03: | The Claimant's asylum application was refused (her husband's asylum application was refused on 03.06.03). |
| 06.10.03: | The couple's appeal was heard by the Immigration Appellate Authority. |
| 29.10.03: | The couple's appeal was dismissed. |
| 12.11.03: | Appeal rights were exhausted. |
| 16.01.04: | The couple were listed as absconders. |
| 10.01.08: | The Claimant's husband was encountered by an arrest team and was detained pending removal. |
| 29.01.08: | The couple applied for leave to remain in the United Kingdom relying on Articles 2, 3 and 8 of the ECHR. |
| 01.02.08: | The Secretary of State refused the application and also refused to treat it as a fresh claim. |
| 13.02.08: | The Secretary of State issued directions for the couple's removal from the United Kingdom on 21.02.08. |
| 15.02.08: | The couple made further written submissions. |
| 20.02.08: | The Secretary of State refused the submissions. |
| 20.02.08: | The Claimant's husband issued Judicial Review proceeding challenging the removal directions (CO/1772/2008) (removal directions were deferred). |
| 21.02.08: | The Claimant failed to turn up for the scheduled flight for departure. |
| 07.03.08: | Simon J refused permission to apply for Judicial Review stating that the "claim entirely lacks substance". |
| 20.03.08: | The Claimant's husband, who was in detention, was removed from the United Kingdom but she, who was not in detention, absconded. |
| 07.01.09: | The Claimant sent a completed CRD questionnaire to the Secretary of State with some further papers. |
| 23.02.11: | The Claimant sent a pre-action protocol letter. |
| 01.03.11: | The Secretary of State acknowledged the pre-action protocol letter. |
| 22.08.11: | The Claimant sent another pre-action protocol letter. |
| 15.09.11: | The Secretary of State issued a letter saying that the Claimant has no basis to stay in the United Kingdom. |
| 07.10.11: | The Claimant responded to the Secretary of State's letter in writing. |
| 17.02.12: | The Claimant issued these Judicial Review proceedings. |
| 01.08.12: | The Secretary of State issued a further decision rejecting the further submissions of 15 February 2008 and refusing to treat them as a fresh claim. |
| 04.09.12: | Mitting J granted permission to apply for Judicial Review. |
| 18.09.12: | The Secretary of State issued a decision rejecting the further submission of 7 January 2009 and refusing to treat them as a fresh claim. |
Section 1(4) of the Immigration Act 1971 ("the 1971 Act"):
"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
The Immigration Rules are made by the Secretary of State and approved by Parliament under section 3(2) of the 1971 Act:
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."
Paragraph 395C of the Immigration Rules, which was deleted with effect from 13 February 2012, by HC 1733:
"395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person's behalf.
In the case of family members, the factors listed in paragraphs 365–368 must also be taken into account."
Paragraph 353B of the Immigration Rules provides as follows:
"353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:
(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or...
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