Shahzad (Art 8: Legitimate Aim) [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Pitt,Pitt UTJ,Storey UTJ |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] UKUT 85 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 26 February 2014 |
[2014] UKUT 85 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Storey UTJ and Pitt UTJ
Mr P Deller, Senior Home Office Presenting Officer, for the Secretary of State;
Mr S Kumar, Capital Solicitors, for the Claimant.
AN (Afghanistan) and Others v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 1189
Abdulaziz, Cabales and Balkandali v United Kingdom 1985 ECHR 9214/80, ECtHR; (1985) 7 EHRR 471
Ahmut v Netherlands 1996 ECHR 21702/93, ECtHR; (1997) 24 EHRR 62
Ajayi and Others v United Kingdom 1999 ECHR 27663/95
Alim v Russia 2011 ECHR 39417/07
Antwi and Others v Norway 2012 ECHR 26940/10
Belfast City Council v Miss Behavin' Ltd (Northern Ireland)UNK [2007] UKHL 19; [2007] 1 WLR 1420; [2007] 3 All ER 1007
Bensaid v United Kingdom 2001 ECHR 44599/98; (2001) 33 EHRR 10; [2001] INLR 325
Berrehab v Netherlands 1988 ECHR 10730/84, ECtHR; (1989) 11 EHRR 322
Birage and Others v Sweden 2012 ECHR 1722/10
Boultif v Switzerland 2001 ECHR 54273/00; (2001) 33 EHRR 50
C v Belgium 1996 ECHR 21794/93, ECtHR; (2001) 32 EHRR 2
CDS (PBS: ‘available’: Article 8) Brazil [2010] UKUT 305 (IAC); [2011] Imm AR 126; [2011] INLR 331
Ciliz v Netherlands 2000 ECHR 29192/95; (2000) 2 FLR 469
D v United Kingdom 1997 ECHR 30240/96, ECtHR; (1997) 24 EHRR 423
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and HousingELR [1999] 1 AC 69; [1998] 3 WLR 675
El-Khaouli v France 2000 ECHR 40266/98
FK & OK (Botswana) v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 238
Funke v France 1993 ECHR 10828/84, ECtHR; (1993) 16 EHRR 297; [1993] 1 CMLR 897
GS (Article 8: public interest not a fixity) Serbia and Montenegro [2005] UKAIT 00121
Golder v United Kingdom 1975 ECHR 4451/70, ECtHR; (1979–80) 1 EHRR 524
Gul v Switzerland 1996 ECHR 23218/94, ECtHR; (1996) 22 EHRR 93
Gulshan (Article 8 — new Rules — correct approach) [2013] UKUT 640 (IAC); [2014] Imm AR 489
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15; [2007] Imm AR 571; [2007] INLR 314
Izuazu (Article 8 — new rules) [2012] UKUT 45 (IAC); [2013] Imm AR 453; [2013] INLR 733
JO (Uganda) v Secretary of State for the Home Department; JT (Ivory Coast) v Secretary of State for the Home DepartmentUNK[2010] EWCA Civ 10; [2010] 1 WLR 1607; [2010] Imm AR 421; [2010] INLR 545
Kabia (MF: para 398 —‘exceptional circumstances’) [2013] UKUT 569 (IAC)
Klass and Others v Germany 1978 ECHR 5029/71, ECtHR; (1979–80) 2 EHRR 214
Laarej v France 1999 ECHR 41318/98
Liu v Russia 2007 ECHR 42086/05; (2008) 47 EHRR 33
López Ostra v Spain 1994 ECHR 16798/90, ECtHR; (1995) 20 EHRR 277
MF (Article 8: new rules) Nigeria [2012] UKUT 393 (IAC); [2013] Imm AR 256
MF (Nigeria) v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 1192; [2014] 1 WLR 544; [2014] 2 All ER 543; [2014] Imm AR 211; [2014] INLR 18
MM (Tier 1 PSW; Art 8; ‘private life’) Zimbabwe [2009] UKAIT 00037; [2010] Imm AR 391
Maslov v Austria 2008 ECHR 1638/03; (2008) 47 EHRR 20; [2009] INLR 47
Miah, Bibi and Salman v Secretary of State for the Home DepartmentUNK [2012] EWCA Civ 261; [2013] QB 35; [2012] 3 WLR 492; [2012] Imm AR 702; [2013] INLR 50
N (Kenya) v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 1094; [2004] INLR 612
Nasim and Others (Article 8) [2014] UKUT 25 (IAC)
Nhundu and Chiwera 1 June 2001 (TH/21729/00) IAT (unreported)
Nunez v Norway 2011 ECHR 55597/09; (2014) 58 EHRR 17
Omoregie and Others v Norway 2008 ECHR 265/07; [2009] Imm AR 170
Osman v Denmark 2011 ECHR 38058/09; [2011] Imm AR 682; [2012] INLR 71
PO (interests of the state — Article 8) Nigeria [2006] UKAIT 00087
Patel and Others v Secretary of State for the Home Department; Anwar v Secretary of State for the Home Department; Alam v Secretary of State for the Home Department[2013] UKSC 72; [2013] 3 WLR 1517; [2014] 1 All ER 1157; [2014] Imm AR 456
Powell and Rayner v United Kingdom 1990 ECHR 9310/81, EComHR; (1990) 12 EHRR CD235
R v Secretary of State for the Home Department ex parte RazgarUNK [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
R (on the application of Bibi and Ali) v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 322; [2014] 1 WLR 208; [2013] 3 All ER 778; [2013] Imm AR 1007; [2013] INLR 613
R (on the application of Chapti and Others) v Secretary of State for the Home DepartmentUNK [2011] EWHC 3370 (Admin); [2012] 2 All ER 653
R (on the application of MM) v Secretary of State for the Home Department; R (on the application of Majid) v Secretary of State for the Home Department; R (on the application of Javed) v Secretary of State for the Home DepartmentUNK[2013] EWHC 1900 (Admin); [2014] Imm AR 245
R (on the application of Mansoor) v Secretary of State for the Home DepartmentUNK [2011] EWHC 832 (Admin)
R (on the application of Munir and Another) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192; [2012] 4 All ER 1025; [2012] Imm AR 1038; [2012] INLR 546
R (on the application of Nagre) v Secretary of State for the Home DepartmentUNK [2013] EWHC 720 (Admin)
R (on the application of Quila and Another) v Secretary of State for the Home Department; R (on the application of Bibi and Another) v Secretary of State for the Home Department[2011] UKSC 45; [2012] 1 AC 621; [2011] 3 WLR 836; [2012] 1 All ER 1011; [2012] Imm AR 135; [2011] INLR 698
RU (Bangladesh) v Secretary of State for the Home DepartmentUNK [2011] EWCA Civ 651; [2011] Imm AR 662
Rodrigues da Silva and Hoogkamer v Netherlands 2006 ECHR 50435/99; (2004) 44 EHRR 34
SS (India) v Secretary of State for the Home DepartmentUNK [2010] EWCA Civ 388
SS (Nigeria) v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 550; [2014] 1 WLR 998; [2013] Imm AR 1106
Sanade and Others (British children: Zambrano: Dereci) [2012] UKUT 49 (IAC); [2012] Imm AR 597; [2012] INLR 633
Secretary of State for the Home Department v Pankina and OthersUNK [2010] EWCA Civ 719; [2011] QB 376; [2010] 3 WLR 1526; [2011] 1 All ER 1043; [2010] Imm AR 689; [2010] INLR 529
Sezen v Netherlands 2006 ECHR 50252/99; (2006) 43 EHRR 30
Silver and Others v United Kingdom 1983 ECHR 5947/72, ECtHR; (1983) 5 EHRR 347
Slivenko v Latvia 2003 ECHR 48321/99; (2004) 39 EHRR 24
Societe Colas Est and Others v France 2002 ECHR 37971/97; (2004) 39 EHRR 17
VW (Uganda) v Secretary of State for the Home Department; AB (Somalia) v Secretary of State for the Home DepartmentUNK[2009] EWCA Civ 5; [2009] Imm AR 436; [2009] INLR 295
Vasquez v Switzerland 2013 ECHR 1785/08
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369
European Convention on Human Rights, Article 8
Immigration Rules HC 395 (as amended), paragraphs 398, 399, 399A; Appendix FM, GEN. 1.1
Human rights — Article 8 of the ECHR — legitimate aim —‘prevention of disorder or crime’—‘economic well-being of the country’— maintenance of effective immigration control — new rules —MF (Nigeria)UNK[2013] EWCA Civ 1192 explained
The Claimant, a citizen of Pakistan, was granted leave to remain as a student until January 2010. Prior to the expiry of his leave he applied for further leave to remain as a student. The Secretary of State for the Home Department refused the application on the ground that his uncle, the sponsor, was not his parent. On appeal the First-tier Tribunal Judge noted that, at the relevant time, the requirement for funds to be provided by a parent or legal guardian was only contained in Policy Guidance, not in the Immigration Rules HC 395 (as amended). Applying the guidance set out in Secretary of State for the Home Department v Pankina and OthersUNK[2010] EWCA Civ 719, the Judge concluded that the Claimant's appeal should be allowed because his sponsoring uncle had shown he was in loco parentis and both willing and able to provide the maintenance funds. In response the Secretary of State granted the Claimant further leave to remain until February 2012.
Before that leave expired, the Claimant applied for further leave to undertake a Diploma in Information Technology at London International College of Management. The Secretary of State informed him that she had decided to revoke the licence of that college and gave him 60 days to find a new Tier 4 educational sponsor. In September 2012 the Claimant made a renewed application for leave as a student under the Points Based System to pursue a different diploma. In March 2013 the Secretary of State refused the application. The Claimant appealed on the ground that his position was the same as that which had existed at the time of his previous appeal and there was no reason to go behind the findings of the previous judge. The First-tier Tribunal Judge dismissed the appeal under the Immigration Rules but allowed it on the basis of Article 8 of the ECHR. The Judge held that, as refusal would entail the Claimant returning to Pakistan to apply for entry clearance, the financial and academic implications would constitute a disproportionate interference with the Claimant's private life.
The Secretary of State appealed to the Upper Tribunal raising three grounds. First, the Judge had failed to consider the Claimant's Article 8 circumstances solely under the Immigration Rules as set out in the Court of Appeal judgment in MF (Nigeria) v Secretary of State for the Home DepartmentUNK[2013] EWCA Civ 1192. Secondly, the Judge had in effect applied a ‘near miss’ principle contrary to the Court of Appeal's decision in Miah, Bibi and Salman v Secretary of State for the Home DepartmentUNK[2012] EWCA Civ 261. Thirdly, the...
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