The Queen (on the Application of Mustapha) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Mathew Gullick |
| Judgment Date | 09 June 2021 |
| Neutral Citation | [2021] EWHC 1859 (Admin) |
| Docket Number | No. CO/946/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1859 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Mathew Gullick QC
(Sitting as a Deputy Judge of the High Court)
No. CO/946/2021
Mr A. Malik appeared on behalf of the Claimant.
Mr J. Holborn appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Mr Hugh Mercer QC, sitting as a Deputy Judge of the High Court, on 27 April 2021. This hearing is being conducted by way of a Cloud Video Platform remote hearing in accordance with the arrangements adopted during the COVID-19 pandemic and the wishes of the parties. I am satisfied that, despite some difficulties with Mr Malik's internet connection during the hearing, the mode of hearing has been appropriate and has achieved a fair hearing for both parties.
The background to this claim is that the claimant is a citizen of Nigeria. She has been present in the United Kingdom since 2005. She also has a child born in the United Kingdom in 2007. The claimant was granted a period of leave to remain in the United Kingdom under the provisions of the Immigration Act 1971 on 22 January 2018 to expire on 23 May 2020.
Pausing there, the consequences of failing to apply to extend a period of limited leave to remain before it expires is that the individual becomes an overstayer: they no longer have leave to remain. That does not prevent them from either applying for or securing a further period of leave to remain, but it means that whilst they do so they are without leave. Where an application to extend is made before the expiry of the leave, however, then leave to remain is continued by the operation of s.3C of the Immigration Act 1971 pending the determination of the application. The consequences of failing to make an application to extend a period of limited leave to remain prior to the expiry of that period can be serious for the individual concerned. That is because once the grant of leave has expired without there being what is known as an “in-time” application to extend it, the individual is no longer lawfully present in the United Kingdom until a further period of leave is granted. This can have serious consequences including, as in the present case, in relation to employment and the right to work. Those unlawfully present in the United Kingdom do not, in general, have the right to work.
Returning to the facts of the present case, the claimant's evidence is that on 18 May 2020 – so before the expiry of her period of limited leave to remain – she sought to make an application for a further period of leave. However, she says that she found the process for applying for a fee waiver difficult. In any event, it is common ground that she did not make an application for further leave to remain prior to the expiry of her period of leave on 23 May 2020. The consequence of that, at least ordinarily and subject to matters to which I shall return, is that the period of leave to remain would have expired in accordance with the terms of the original grant on 23 May 2020.
The claimant subsequently instructed legal representatives. An application for a fee waiver was made on 29 July 2020 and approved by the defendant on 14 August 2020. On 4 September 2020 the claimant made an application for a further period of leave to remain. That application was granted by the defendant on 31 March 2021, a date which I note is after this claim was issued. The claimant is therefore lawfully present in the United Kingdom as things now stand, her period of leave to remain not expiring for some 30 months after 31 March 2021. She therefore has the right to work and is indeed currently in employment. However, the Secretary of State contends that during the period between a date in 2020 and the grant of the renewed application for leave to remain on 31 March 2021, the claimant did not have leave to remain and was not lawfully present in the United Kingdom and did not have the right to work. The Secretary of State submits that the making of the application for leave to remain on 4 September 2020 does not assist the claimant on this regard because it was, on any view, made after the expiry of her previous period of leave.
The significance of this becomes apparent from what happened on 26 February 2021, at a point when the claimant was still working and in employment. The defendant informed the claimant's employer, which had requested confirmation of her right to work in the United Kingdom, that the claimant did not have the right to work. This resulted in the claimant's employer dismissing her in early March 2021. The claimant's grounds indicate that a previous request to the Secretary of State in relation to the right to work made in August 2020 had come back with a positive result with the certification of the right to work said to expire on 21 February 2021. I shall return to the significance of that notification in due course but, for present purposes, it explains why the claimant's employer sought a further confirmation of her right to work in February 2021.
The claimant filed this claim form, as I said, prior to the grant of her application made on 4 September 2020 for further leave to remain. The relief sought in section of the claim form was as follows: firstly, the quashing of the defendant's decision of 26 February 2021; secondly, a declaration that the claimant was entitled to work in the United Kingdom; thirdly, a mandatory order requiring the defendant to determine the claimant's then undetermined application for leave to remain; and, fourthly, damages for breach of Art.8 of the European Convention on Human Rights (“the ECHR”).
I pause here to note the relief sought in this claim has, as Mr Malik realistically accepted, almost completely been achieved. The claimant's application for further leave to remain was, as I have said, granted on 31 March 2021. The defendant accepts that the claimant is now entitled to work in the United Kingdom. The claimant has returned to employment. The effects of what happened prior to the determination of the claimant's application for leave to remain, made on 4 September 2020 and determined positively on 31 March 2021, are therefore historic only so far as the present claim is concerned. I am not now concerned with the impact on any future application for further leave, including potentially for indefinite leave to remain in due course which the claimant may make, of any gap in her leave between 23 May 2020 and 31 March 2021. That is a matter of determination, if it ever arises, in the future.
The claimant, however, seeks to pursue this claim, notwithstanding the achievement of the determination of her application for leave to remain and her return to employment, on the basis that she seeks damages from the Secretary of State for the loss of earnings which she suffered as the result of a dismissal from her employment, which appears to have been at a point in early March 2021, and the resumption of her employment following the grant of her leave to remain. That appears to be a period of approximately four weeks or possibly, depending on the precise date on which employment was terminated, five weeks. Mr Malik was not able to quantify the claimant's damages claim in this regard, although it would appear to be one that is relatively modest: there is no indication that the claimant was in highly remunerative employment, for example. The damages claim is put by Mr Malik in a number of ways, to which I shall return in due course.
There are four grounds of judicial review advanced by the claimant in her pleaded case. The first ground relies on statements made by the Home Office regarding the impact of the COVID-19 pandemic on immigration status. However, it also conflates the significance of such statements with alleged misapplication of the statutory provision for extension of leave in s.3C of the Immigration Act 1971 and with the operation of para.39E of the Immigration Rules regarding the making of applications by those whose leave has already expired within a short period (14 days) following the expiry of the leave. These are, in my judgment, separate questions. Nothing said by the defendant, as Mr Holborn accepted and indeed averred, can affect the operation of s.3C of the 1971 Act, which is a piece of primary legislation. Whilst it may be possible to rely on statements made by the defendant in connection with other public law arguments, whether or not the claimant continued to have leave under s.3C of the Immigration Act 1971 after 23 May 2020 is a matter of the application of the primary legislation to the facts of the claimant's case.
I turn now to the statements relied on by the claimant in support of her claim, which are set out in her grounds at paras.2 and...
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