Secretary of State for the Home Department v The Queen (on the application of Paramjit Kaur)

JurisdictionEngland & Wales
JudgeLord Justice Holroyde,Lord Justice Richards,Lady Justice Arden
Judgment Date21 June 2018
Neutral Citation[2018] EWCA Civ 1423
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2015/0549
Date21 June 2018

[2018] EWCA Civ 1423

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Alexandra Marks, sitting as a Deputy High Court Judge

Insert Lower Court NC Number Here

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Arden

Lord Justice David Richards

and

Lord Justice Holroyde

Case No: C4/2015/0549

Between:
Secretary of State for the Home Department
Defendant/Appellant
and
The Queen (on the application of Paramjit Kaur)
Claimant/Respondent

Richard O'Brien (instructed by Government Legal Department) for the Appellant

Parminder Saini (instructed by MTG Solicitors) for the Respondent

Hearing dates: 15th May 2018

Lord Justice Holroyde
1

By a letter and a Notice of Decision dated 2 nd May 2013 the Secretary of State for the Home Department (“the SSHD”) refused an application by Mrs Paramjit Kaur (“Mrs Kaur”) for leave to remain in the United Kingdom. The reasons for the refusal which the SSHD gave at that time were later supplemented in a further letter dated 25 th April 2014. Mrs Kaur applied for judicial review of the SSHD's decision. Her claim was heard on 28 th January 2015 by Alexandra Marks, sitting as a Deputy High Court Judge, who quashed the SSHD's decision as irrational and unreasonable. The SSHD now appeals against the decision of the Deputy Judge.

2

The appeal was for a time stayed to await the decision of the Supreme Court in R (Agyarko) v SSHD [2017] UKSC 11, [2017] 1 WLR 823. The stay was lifted following the decision in Agyarko in March 2017. The appeal was then listed to be heard in November 2017, but unfortunately it became necessary to vacate that date.

The facts:

3

The relevant facts can be summarised as follows. Mrs Kaur, a national of India, is now 58 years old. On 16 th January 1983, in India, she married Mr Gurinder Singh (“Mr Singh”), who is also now aged 58. They have a daughter now aged 34, and a son now aged 30, both of whom have been resident in this country for some years, and both of whom have children of their own.

4

Mr Singh came to this country in January 1997, initially with leave to enter as a visitor, and has remained here since that time. Mrs Kaur and the children stayed in India. Between 1997 and 2006, Mrs Kaur came to the United Kingdom as a visitor on about four occasions each year, returning to India after each visit. On her last such visit, she entered the country on 10 th December 2006 with leave which expired on 10 th June 2007. She has remained unlawfully in this country since that date.

5

Mr Singh initially made an asylum claim, which was unsuccessful. He nonetheless remained unlawfully in this country, and in about 2010 he made an application to the SSHD for leave to remain under the Legacy Scheme. This court has not been provided with a copy of his initial application. There is no clear evidence that it included any formal application on behalf of his wife, and the SSHD's case has throughout been that it did not. The court has however been provided with copy correspondence from which it is apparent that, in late 2010, Mr Singh did make a written request to include his wife, son, daughter and grandson in his application. He did so in his reply to a letter dated 8 th November 2010 from the UK Border Agency asking him to provide information including a copy of the marriage certificate, the duration of his cohabitation with his wife, when and where they met, when they commenced a relationship and when they decided to marry. However, notwithstanding Mr Singh's provision of that information and his making of that request, the only application which the SSHD had to consider, and did consider, was his application. On 23 rd March 2011 Mr Singh was granted indefinite leave to remain, but no such grant was made to Mrs Kaur. On 4 th July 2013 Mr Singh became a naturalised British citizen.

6

In February 2012 solicitors wrote to the SSHD on Mrs Kaur's behalf asking why her claim had not been considered. It is not clear whether the solicitors thought that a formal application for leave to remain had in fact been made by Mrs Kaur in 2010 or 2011. No documentation has been provided to this court unequivocally showing that she did. It seems probable that the solicitors were referring to the correspondence in which Mr Singh had expressed a wish for his wife and other members of his family to be included in his application.

7

Thereafter, Mrs Kaur undoubtedly did make a formal application for leave to remain. She did so by a letter dated 7 th February 2013, in which the solicitors acting on her behalf stated that she sought leave to remain –

“… on compassionate grounds on the basis of her connections in the UK and possible breach of human rights under Article 8 of the ECHR, namely her right to respect for her private life in accordance with paragraph 276ADE(vi) and EX.1(b) of the Immigration Rules.”

The letter went on to refer to Mrs Kaur's arrival in the UK on 10 th December 2006, to her earlier frequent visits to her husband, to the failure of the SSHD to make any decision on the claim which she said she had made in 2011, and to the presence in the UK of her close family. The letter stated that Mrs Kaur did not wish to return to India, having established a private life in the UK, and said –

“… our client does not have any social, cultural family or any other ties in India any more. This is on account of the length of time that she has been in the UK, the ties and connections she has established in the UK, the fact that her family are residing in the UK and on the basis that our client's mother in law recently passed away in India. As such, our client has no further ties with her country of origin.”

The letter went on to speak of Mrs Kaur having integrated herself into British society and asserted that she did not have any means of support in India. It further stated that there were insurmountable obstacles to family life continuing with her husband outside of the UK, on the basis that Mr Singh had been residing in the UK for more than 16 years and had established a life for himself here, being in gainful employment and making a valuable contribution to society. It was submitted that it would be unreasonable to expect him to leave the UK and return to India, and that there were insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family life outside the UK.

8

An application form was also completed by Mrs Kaur or on her behalf, but it is not suggested in this appeal that it added anything of substance to the matters mentioned in the solicitors' letter.

The SSHD's decision:

9

As I have indicated, the SSHD gave her decision on 2 nd May 2013: about two months before Mr Singh became a British citizen. She did so in a letter which enclosed, and referred to, a Notice of Decision. I have no doubt that the two documents must be read together. Summarising their contents, the SSHD addressed the provisions of the Immigration Rules pursuant to which Mrs Kaur had applied for leave to remain. The SSHD stated that Mrs Kaur had no family life with her daughter which would be relevant to her Article 8 rights, because the daughter was married and living an independent life. The relevant family life was therefore that of Mrs Kaur with Mr Singh. The SSHD acknowledged that Mr Singh's Article 8 right to a family life must also be considered. So far as Mr Singh was concerned, the letter said that Mr Singh had lived in India until he was 38 years old and that the SSHD was satisfied that he could readapt to life in India. It was therefore reasonable to expect Mrs Kaur and Mr Singh to continue their family lives and private lives outside of the United Kingdom:

“Whilst it is acknowledged that this decision may cause a degree of hardship and inconvenience for your client and her husband, this is not decisive from the viewpoint of Article 8. The Secretary of State has weighed up the hardship and inconvenience this refusal may cause and is satisfied that the decision is proportionate to the aims of maintaining an effective immigration control. The Secretary of State is therefore satisfied that the decision to refuse your client does not represent a breach of any party's Article 8 rights to a family life or private life.”

The letter stated that Mrs Kaur therefore did not qualify within the Immigration Rules under either the “Parent Route” (Appendix FM, R-LTRPT 1.1) or the “Partner Route” (Appendix FM, R-LTRP 1.1). As to her private life, the letter indicated that the SSHD did not accept that Mrs Kaur had lost ties to her home country during the period of time she had been in the UK, and accordingly was not satisfied that she could meet the requirements of Rule 276ADE(iv) of the Immigration Rules. Mrs Kaur's application was therefore refused. Mrs Kaur had no right of appeal, as she did not have leave to enter or remain in the UK as at the date of her application.

10

The solicitors representing Mrs Kaur responded to that decision with a pre-action protocol letter. The claim for judicial review was then issued on 2 nd August 2013, and permission to apply was granted on 27 th January 2014.

11

On 25 th April 2014 the SSHD sent a supplemental letter, to be read in conjunction with the original decision of 2 nd May 2013. In relation to Rule 276ADE, the letter noted that Mrs Kaur was 53 years old when she made her application and had spent only 7 years of her life continuously in the UK. It was therefore considered that she had stronger ties to India than to the UK. The letter further noted that Mrs Kaur volunteered at a local Sikh temple, and went on to say –

“The evidence shows that your client is living in a diaspora of Indian nationals or ex-nationals so she continues to enjoy the culture and language of her own country here in the UK. Therefore, as your client retains her cultural and language ties to India, it is considered she...

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