The Queen (on the application of Sandia Behary) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge Andrew Grubb |
| Judgment Date | 20 November 2013 |
| Neutral Citation | [2013] EWHC 3575 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7768/2012 |
| Date | 20 November 2013 |
[2013] EWHC 3575 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Grubb
Sitting as a Deputy Judge of the High Court
Case No: CO/7768/2012
Zane Malik and Darryl Balroop (instructed by Malik Law Chambers, Solicitors) for the Claimant
Susan Chan (instructed by The Treasury Solicitor) for the Defendant
Introduction
The Claimant, Sandia Behary is a citizen of Mauritius. She arrived in the United Kingdom on 5 May 2005 with her husband, Naresse Behary and her daughter, Yuvna Behary who was born on 25 November 2003. She was given leave to enter as a visitor for six months. On 22 July 2005 she applied for leave to remain as a student which, on 15 August 2005, was granted until 31 October 2006. There then followed a number of applications for further leave as a student. These culminated, for present purposes, with an application by the Claimant made on 18 February 2010 for leave to remain as a Tier 4 (General) Student. On 13 April 2010, she was granted that leave until 29 November 201During this time, her husband and daughter were granted leave matching that of the Claimant. The Claimant and her husband also had a son, Ranveer born on 12 October 2007 in the United Kingdom and, again as I understand it, he has had leave in line with that of his mother.
On 30 November 2011, the Claimant posted an application to the Home Office for further leave to remain as a Tier 4 (General) Student and applications were also made by her husband and two children as her dependents. The applications were received by the Secretary of State on 1 December 2011.
In a decision letter dated 1 March 2012, the Secretary of State refused the applications of the Claimant and her family. The Claimant's application was refused on the basis that she could not demonstrate that she had available the required funds as set out in Appendix C of the Immigration Rules ( Statement of Changes in Immigration Rules, HC 395 as amended).
The Secretary of State concluded that the Claimant's application was made after her leave had expired on 29 November 2011 and as a consequence she could not demonstrate that she had an "established presence" studying in the UK under paragraph 14 of Appendix C of the Rules as she did not have "current…leave to remain as a Tier 4 migrant". By virtue of paragraph 11 of Appendix C, the Claimant was therefore required to show a higher level of available funds to meet the maintenance requirements which (taking into account of outstanding course fees) amounted to £20,500 (that is the figure now accepted by the parties). She had around £12,700 in her bank account at the required time.
As a result, the Claimant was not awarded the necessary 10 points under the Points Based System (PBS) and so she did not meet the requirement in paragraph 245ZX(d) of the Immigration Rules. The applications of the Claimant's family were also refused as they could not meet the requirements of the Rules as her dependents under paragraphs 319C and 319H respectively of HC 395. The application of the Claimant's husband was also refused on the basis that he had failed to disclose a conviction for driving a motor vehicle with excess alcohol and so his application also fell to be dismissed under the mandatory refusal provision in paragraph 322(1A) of the Rules. That latter matter forms no part of the challenge in these proceedings. The decision letter dated 1 March 2012 indicated that there was no right of appeal against the decisions as the applications had been made on 1 December 2011 at a time when the relevant individual's leave to remain had already expired on 29 November 2011.
On 10 March 2012, the Claimant's representatives wrote to the UK Border Agency (UKBA) inviting the Secretary of State to reconsider the Claimant's application (and those of her family) on the basis, inter alia, that the application had been made late because the Claimant was "heavily ill" and the post office was closed on 29 November 2011. That letter, so far as relevant, is as follows:
" Re: Mrs. Sandia Behary, Mauritius, DOB: 21/05/1978, Mr. Naresse Behary, DOB: 12/05/1971, Mauritius, Mr. Ranveer Behary, DOB: 12/10/2007 Mauritius, Miss. Yuvna Pernsing Behary, DOB: 25/11/2003, Mauritius
We have been instructed by the above named clients in connection with their immigration matter in the UK.
As per our client's instructions she was heavily ill on that particular day and has prevented of making her application on time due to reason of closure of post office for special deliver on 29 th November 2011, the day our client's previous stay was expired hence she has posted the application on the following day as per post office's direction as she wanted send her application by guaranteed special delivery service which you have received on 1 st December 2011. This was an accidental occurrence, and we believe that our clients should not be penalised by unintended application of law.
Our client is a genuine international student who has an established presence and eligible for the reduced maintenance level. She herself had sufficient funds in her own account to maintain herself and three dependants amounting more than £3600.00. However, she enclosed her parent's financial documents as an additional document as they volunteered to sponsor her further studies.
We also note, our client's husband has convicted a traffic offence which has been declared in their previous application, however, omitted in completing his application this time by his wife without knowledge. It is clear that this was happened by a mistake as same conviction has been declared in their previous application and had no intention of concealing same in this application
We kindly request you to re-consider our client's application in the light of above information.
Alternatively grant her appeal rights under section 82(1) of the Nationality, Immigration and Asylum Act 2002 in light of above explained truly exceptional circumstances and in consideration of Doctrine of Fairness in the name of Justice.
We look forward to hearing from you with a positive response."
In response in a letter dated 21 March 2012, the Secretary of State confirmed her earlier decision of 1 March 2012. The relevant substance of the letter is as follows:
"Thank you for your letter of 10 March 2012 concerning your above named client and her application for leave to remain in the United Kingdom as a Tier 4 (General) Student.
Your client's application was refused with no right of appeal on 01 March 2012 and you have contacted this office to request that the decision in reconsidered.
You state that your client was unable to make her application in time as she was ill and her post office was closed for special delivery on 29 November 2011. Thereafter, she did not post her application until the day after her leave to remain in the UK expired. You state your client has an established presence and is eligible for the reduced maintenance level.
You also state, your client's husband has a conviction for a traffic offence which was declared in their previous application, however, it was omitted in the completing of this application by his wife without his knowledge.
An applicant will have an established presence studying in the UK if they have current entry clearance, leave to enter or leave to remain as a Tier 4 migrant, Student or as a Postgraduate Doctor or Dentist and at the date of application:
has finished a single course that was at least six months long within their last period of entry clearance, leave to enter or leave to remain, or
is applying for continued study on a single course where the applicant has completed at least six months of that course.
An applicant making an out of time application will automatically NOT have an established presence.
Your client's leave to remain expired on 29 November 2011, however, for reasons stated above, her application was not submitted until 01 December 2011. Therefore your client does not have an established presence in the UK and does not qualify for the reduced maintenance level.
Consideration has been given to the reasons as to why your client's application was submitted after the expiry of her leave to remain. You state that she was ill, however, you do not give any more details than this and you have not provided any medical evidence to confirm the seriousness of your client's illness.
You also state that the post office was closed when she wished to send the application by special delivery. It remains your client's responsibility to ensure any applications she wishes to submit to the UK Border Agency are made before the expiry of any period of leave she may have and she should allow sufficient time to complete the process.
The Secretary of State is not satisfied that the reason for your client's application being submitted late are sufficiently compelling or compassionate enough to exercise discretion on this occasion."
The letter then goes on to set out again the Secretary of State's position that the Claimant cannot meet the maintenance requirement under the Rules and in respect of the non-disclosure of the conviction of the Claimant's husband and to point out the Claimant has no right of appeal and is liable to be removed.
The Claim
On 18 July 2012, the Claimant lodged this application for judicial review challenging the Secretary of State's decisions of 1 March and 21 March 2012. By way of relief the Claimant seeks an order quashing the...
To continue reading
Request your trial
-
Datamatics UK Ltd v Secretary of State for the Home Department
...be necessary for any express reference to be made to the s.55 duty in the Guidance. 42 Further, the SSHD relies on R (Behary) v SSHD [2013] EWHC 3575 (Admin) at [43]–[46] where the High Court held that section 55 did not impose a duty on the Defendant to consider the best interests of the d......
-
The Secretary of State for the Home Department v KG (India)
...be determined in the abstract. This point is well-illustrated in my view, by the subsequent decision in R (on application of Sandia Behary) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin) where a de minimis argument made on the basis that an application for leave to re......
-
The Queen (on the application of Sandia Behary) and Another v Secretary of State for the Home Department
...or 'latest'". In the case of Behary, Upper Tribunal Judge Grubb, sitting as a Deputy High Court Judge, rejected that argument: [2013] EWHC 3575 (Admin). In the case of Ullah, Judge Taylor, sitting as a judge of the High Court, took the same view: [2015] EWHC 337 (Admin). 7 The ordinary me......
-
Upper Tribunal (Immigration and asylum chamber), 2016-10-05, IA/29196/2014 & Others
...and under Article 8 ECHR. (JO and Others (Section 55 duty) Nigeria [2014] UKUT 00517 (IAC)) [6] (R on the application of Sandia Behary) [2013] EWHC 3575 (70). Further the FTT failed to identify the views and wishes of the children themselves about leaving the UK. The third appellant had sub......