The Queen (on the application of Mohammad Asif) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeSimon Bryan
Judgment Date17 April 2015
Neutral Citation[2015] EWHC 1007 (Admin)
Date17 April 2015
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1670/2013

[2015] EWHC 1007 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Simon Bryan QC

(Sitting as a deputy High Court Judge)

Case No: CO/1670/2013

Between:
The Queen (on the application of Mohammad Asif)
Claimant
and
Secretary of State for the Home Department
Defendant

Mr Zane Malik (instructed by Malik Law Chambers Solicitors) for the Claimant

Ms Zoe Leventhal (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 18 March 2015

Simon Bryan QC:

Introduction

1

This is the hearing of two distinct matters that are before the Court. First an application by the Defendant, the Secretary of State for the Home Department ("SSHD") seeking the dismissal of the Claimant's claim for judicial review, and secondly the substantive hearing of the claim for judicial review if it survives the application for dismissal. How these two matters came to be before the Court at the same time arises out of the procedural history of these proceedings which will need to be referred to in some detail.

2

In summary, however, and by way of introduction, the SSHD seeks the dismissal of the claim on two separate bases:

i) That pursuant to paragraph 4 of a Consent Order dated 6 November 2013 it had been ordered that if the Claimant did not file amended grounds within 21 days of the end of a stay of the proceedings (to allow the SSHD to make a reconsideration of the Claimant's application for leave to remain dated 3 April 2012) "the application will be treated as dismissed". No such amended grounds were filed within the relevant period of 21 days, namely (in the circumstances that transpired) by 3 April 2014, or indeed until 10 October 2014 over six months later and shortly before the scheduled substantive hearing then fixed for 28 October 2014. No extension of time was sought or obtained for service of amended grounds out of time, nor any formal application for relief from sanctions made, although the SSHD's application for dismissal has prompted an application for relief from sanctions to be made on behalf of the Claimant at this hearing (based on the matters set out in Claimant's solicitors' letter of 29 October 2014), which it is common ground raises consideration of the factors identified in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795 (" Mitchell"), Denton v TH White Ltd. [2014] 1 W.L.R. 3926 (" Denton") and The Queen (on the application of Dinjan Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633 (" Hysaj").

ii) Applying the principles in Bhatti v Bury MBC [2013] EWHC 3093 (Admin) (" Bhatti") it was not an appropriate case for the judicial review proceedings to remain on foot, where the original decision challenged in the judicial proceedings had been superseded or rendered academic, solely in order to permit a subsequent decision to be challenged without commencing new proceedings for judicial review and without being subject to the permission stage. This aspect of the application for dismissal also raises issues as to the proper construction of the Consent Order, and whether, in fact, it contemplated the service of amended grounds relating to the subsequent decision at all.

3

In relation to the substantive hearing for judicial review, the Claimant in his amended grounds, now seeks to challenge the new decision of the SSHD dated 11 December 2013 on three grounds:-

i) That the SSHD acted unlawfully in refusing the Claimant's application by reference to Paragraph 276ADE and Appendix FM to the Immigration Rules.

ii) That the SSHD failed to consider Article 8 ECHR independently and properly.

iii) That the SSHD's approach to Paragraph 276ADE of the Immigration Rules was legally flawed.

4

A consideration of the dismissal applications (and any relief from sanctions) logically precedes consideration and determination of the substantive claim for judicial review (which may or may not fall away in consequence). However Mr Zane Malik (who appeared on behalf of the Claimant) and Ms Zoe Leventhal (who appeared on behalf of the SSHD) each prayed in aid their respective views on the merits of the claim for judicial review (expressed as "strong" and "unarguable" respectively), as relevant to the exercise of my discretion on applications for dismissal/relief from sanctions, and urged upon me a consideration of the wider merits in the context of the dismissal applications, and application for relief from sanctions.

5

In the light of those submissions, the procedural history of this matter (which explains how these matters came to be listed together), and the fact that all matters could be considered within the court day (albeit necessitating a reserved judgment in consequence), I heard full submissions on all matters in the one hearing rather than issuing a prior ruling upon the dismissal applications and only thereafter proceeding to the substantive hearing if appropriate, a course with which counsel for each party concurred at the start of the hearing.

Background

6

The Claimant is a citizen of Pakistan who was born on 1 January 1971. He first entered the UK in 2006, aged 35, on a family visit visa valid until 9 May 2007. He then returned to Pakistan in 2007, before returning to the UK on another family visit visa valid from 25 July 2007 to 25 January 2008. The Claimant did not return to Pakistan on 25 January 2008 and became an overstayer. In 2011 he met his future wife Shaheen Kauser, who was born on 15 April 1966 and is a British citizen who has lived in the UK for over ten years. On 1 March 2012 they underwent a religious marriage ceremony in Birmingham, UK. Shaheen has two adult children from her earlier marriage, Mohammad lfzal and Kasam Khan who were born respectively on 6 March 1988 and 18 April 1989, and are also British citizens living in the UK. Accordingly at the time of the SSHD's decision of 11 December 2013 they would have been 25 and 24 respectively.

7

At the time of the Claimant's marriage the Claimant's immigration status was precarious. He had been an overstayer in the UK with no basis to remain for over 4 years, and he had made no attempt to regularise his position. On 3 April 2012 (ie a month after his marriage) the Defendant made an application for leave to remain in the UK relying on Article 8 ECHR.

8

Article 8, of course, provides:

" 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

9

The SSHD refused the Claimant's application on 3 October 2012, with subsequent refusal letters on 18 October 2012 and 1 November 2012.

10

It is necessary to identify the scope of the initial application for judicial review, and to set out in detail subsequent events and how matters developed, as they are at the heart of the applications for dismissal.

The claim for judicial review

11

On 14 February 2013 the Claimant issued his claim for judicial review. This was accordingly not made promptly or within 3 months, and as such was out of time. Accordingly, as recorded at section 7 of the Claim Form, the Claimant applied for an extension of time. As shall be seen his explanation was to be echoed down the proceedings and indeed is the same explanation proffered in due course as to why there was a failure to serve amended grounds within 21 days of the SSHD's decision letter of 11 December 2013 (or for a further six months) — in short it was that he was "out of funds". He stated in this regard at section 7 of the Claim Form:

" Extension of time: The decisions under challenge are dated 3 October 2012, 18 October 2012 and 1 November 2012.

Therefore, this application is slightly out-of-time. The Claimant is…privately paying and was out of funds. He was unable to secure any funding. It was therefore impossible for him to instruct his representatives. He has arranged the funds recently and gave instructions straightaway."

12

As Mr Malik acknowledged at the hearing, the claim advanced in Claim Form was, and was limited to, a challenge as to the legality of the reliance of the SSHD upon the rules introduced in the new Immigration Rules (HC 194) it being asserted that "Paragraph 276ADE and Section EX1 are unlawful as being incompatible with the constitutional fundamentals of rule of law, independence of judiciary and parliamentary sovereignty… [and] for being incompatible with Article 8". It was not concerned with a challenge on the facts of the Claimant's particular case.

13

In the light of the decision of Sales J in R(Nagre) v SSHD [2013] EWHC 720 Admin (" Nagre") that claim was unarguable, and indeed in so far as decisions from 6 September 2012 are concerned (all the decisions in relation to the Claimant), any such claim is itself bound to fail in this Court post the decision of the Court of Appeal in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74, as Mr Malik accepts.

14

The paper application for permission came before Professor Andrew Grubb (sitting as a Deputy High Court Judge) who refused permission, and stated that the case was considered to be without merit. He drew attention to Nagre, and also to the fact that the challenge was not to the decision on the facts of the Claimant's individual case. His...

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