Sarah Khatoon v The Entry Clearance Officer Islamabad (First Defendant) The Upper Tribunal (immigration & Asylum Chamber) (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 26 April 2013 |
| Neutral Citation | [2013] EWHC 972 (Admin) |
| Date | 26 April 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4056/2011 |
[2013] EWHC 972 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/4056/2011
and
Mr Rashid Ahmed & Ms Huma Price (instructed by Lambeth Solicitors) for the Claimant
Mr Matthew Barnes for the First Defendant and
Secretary of State for the Home Department (instructed by Treasury Solicitor)
The Second Defendant did not appear and was not represented
Introduction
In her claim form in these proceedings the Claimant seeks quashing orders in respect of decisions made by the First Defendant on 25 January 2010 and by the Second Defendant (Senior Immigration Judge Storey) on 2 February 2011. In his oral submissions before me Mr Ahmed, quite properly, did not persue the claim for a quashing order against the decision of the First Defendant. He concentrated on seeking to persuade me that I should grant a quashing order in respect of the decision of Senior Immigration Judge Storey made on 2 February 2011.
Mr Barnes appeared for the First Defendant. However, he also appeared for the Secretary of State for Home Department who had an interest in whether or not the decision of 2 February 2011 should be quashed. Mr Barnes' submission, in a nutshell, was that the decision of Senior Immigration Judge Storey should not be quashed since it contained no error of law.
Permission to apply for judicial review had been granted by HH Judge Rogers on 28 March 2012. The learned judge concluded that the stringent test for the grant of permission laid down in R (Cart) v the Upper Tribunal [2012] 1 AC 621 was satisfied. He concluded that the application for judicial review raised an important point of principle or practice and/or that there was some other compelling reason why permission should be granted.
During the course of the oral submissions before me there was some debate about whether the test for permission had any relevance once permission had been granted. My attention was drawn to the decision of R (HS & Others) v the Upper Tribunal [2012] EWHC 3126 (Admin) — a decision of Charles J. At paragraphs 30, 31 and 40 of his judgment, Charles J reasoned as follows:—
"30. At the first hearing, I raised with the parties the test that they submitted I should apply because I was unclear as to whether on an application for judicial review Cart decided that the second-tier criteria:
a) were to be applied at the permissions stage, with the result they are spent if permission is granted, or
b) were to be applied at the substantive stage on the basis that when granting permission the court had to consider and conclude whether they were arguable.
Having done so, I was content that their common approach that the second-tier appeals criteria were to be applied at the substantive hearing was correct.
31. However, on reflection and on consideration of their further submissions I have changed my mind and concluded that in Cart the Supreme Court has decided that:
a) at the permission stage, the court is to decide whether the second-tier appeals criteria are satisfied and not whether it is arguable that they will be satisfied at the substantive hearing, and so
b) if permission is granted on that basis (as with a second-tier appeal) the permission test is spent and is no longer the test to be applied at the substantive hearing.
………
40……I propose to adopt the changed common ground and proceed on the basis that the grounds for a successful review are not limited to the second-tier appeals criteria, and that I have to apply the well established grounds for judicial review in determining whether the decision of the UT refusing permission to appeal should be set aside."
As I have said this point arose for the first time during the course of oral submissions. It seemed to me to be appropriate to give Mr Barnes some time in which to formulate arguments, if so instructed, to seek to persuade me that I should not follow the decision in HS. Accordingly, I directed that Mr Barnes' instructing solicitor should notify the court within 7 days of the date of the hearing whether the First Defendant and/or the Secretary of State for the Home Department wished to make detailed submissions upon the correctness of the approach of Charles J in HS. By letter dated 11 April 2013 I was informed that neither the First Defendant nor the Secretary of State for the Home Department wished to make submissions about HS.
I propose to follow HS. Accordingly, this claim must be determined by applying the well established grounds upon which claims for judicial review are determined.
The facts
The Claimant was born on 21 December 1991. She is a citizen of Pakistan. Her father is Mohammed Akram; her mother is Zarina Akhtar. The Claimant has 6 brothers.
In 2002 or 2003 Mr Akram left Pakistan and came to the United Kingdom. On 20 August 2007 he was granted indefinite leave to remain in the UK as was one of his sons, Mohammad Ali.
Some time thereafter the Claimant's mother and the Claimant's three youngest brothers applied to the entry clearance officer for indefinite leave to enter the United Kingdom. The application was refused but an appeal to the Immigration and Asylum Tribunal was successful. As I understand it the Claimant's mother and brothers were notified of their successful appeal by letters dated on or about 5 August 2009.
The Claimant did not apply for indefinite leave to enter the United Kingdom at the same time as her mother and brothers. However, she made such an application to the entry clearance officer on or about 27 October 2009.
The application was made by completing a standard form. It was sent to the entry clearance officer under cover of a letter dated 27 October 2009 and a number of documents were also enclosed with the letter. Part of the letter reads as follows:—
"Subject: Settlement visa (as dependent child)
The undersigned is one of the dependent children (under 18 years) of Ms Zarina Akhtar; the Appellant whose case has been decided by the Immigration & Asylum Tribunal. My mother Zarina Akhtar and 3 brothers, namely Mr Mohammad Umar, Mr Usman Ghani and Mr Mohammed Bilal have been granted settlement visa as per court decision…..the honourable court further stated "1. Other child was the subject of an outstanding application", that is me (copy of the Immigration & Asylum Tribunal Services and copy of Solicitors' letter is enclosed)
It is therefore requested that I may also be granted settlement visa so that I can join my father Mr Mohammed Akram and brother Mohammed Ali in London UK (they have indefinite visas) along with my other family members."
In her application form the Claimant gave her address in Pakistan. She did not specify (as she could have done) how long she had lived there but in a later section of the form she identified the address as being the home of her mother.
At paragraph 4.27 of the application form the Claimant asserted that she would be travelling to the UK with her mother. In paragraphs 4.31 and 4.32 she made it clear that she was seeking indefinite leave to remain and that she intended to stay with her father and one of her brothers, Mr Muhammed Ali. In section 6 of the form Mr Akram was named as the Claimant's sponsor.
As I mentioned earlier the application form specified that the Claimant was living at the same address as her mother. At paragraph 6.52 she declared, expressly, that she was living in Pakistan with her mother and siblings but was supported by her father.
In section 6.9 the Claimant provided details of her father's work and earnings. In summary he was said to be working for a company in south west London called Secure Ltd earning £1520.63 per month.
At the time she made her application the Claimant was aged 17 years and 10 months. By the time the First Defendant made his decision on or about 25 January 2010 the Claimant was aged 18 years and 1 month.
In the supplementary skeleton argument filed on behalf of the Claimant Mr Ahmed says that the Claimant's mother and 3 of her brothers travelled to the UK some time in November 2009. I have no reason to doubt what Mr Ahmed says. There is no evidence before me, however, which suggests that this information was communicated to the First Defendant before he made his decision on or about 25 January 2010.
The First Defendant considered the Claimant's application in the context of paragraph 301 of the Immigration Rules. That was probably a mistake; he should have considered the application in the context of paragraph 297. There is only one material difference between the paragraphs; paragraph 301 is apposite if the applicant is seeking limited leave to enter/remain; paragraph 297 is the paragraph by which applications for indefinite leave are considered. The mistake was not material to the decision of the First Defendant, however, because the primary basis upon which the First Defendant refused the Claimant's application was that he was not satisfied that the Claimant was the daughter of Mr Akram and Ms Akhtar.
The Claimant's appeal to the First-tier Tribunal (Immigration and Asylum Chamber) was heard on 28 November 2010. The appeal was dismissed in a determination promulgated on 16 November 2010. Immigration Judge Gurung-Thapa correctly considered the appeal in the context of paragraph 297 of the Immigration Rules. By the time of the hearing of the appeal evidence had been adduced which...
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R Sarah Khatoon (Claimant/Appellant) v The Entry Clearance Officer, Islamabad and Another
...2013 against the decision of Wyn Williams J given in judicial review proceedings in the Administrative Court on 26 April 2013 (see [2013] EWHC 972 (Admin)). The judge below declined to quash the decision of the Upper Tribunal (Senior Immigration Judge Storey) of 2 February 2011 by which Ju......