Upper Tribunal (Immigration and asylum chamber), 2015-10-21, [2015] UKUT 561 (IAC) (R (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Eshun |
| Status | Reported |
| Date | 21 October 2015 |
| Published date | 28 October 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 03 July 2015 |
| Subject Matter | duration of leave – policy) (IJR |
| Appeal Number | [2015] UKUT 561 (IAC) |
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
R (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) IJR [2015] UKUT 00561 (IAC)
Field House
Friday, 3 July 2015
Before
UPPER TRIBUNAL JUDGE ESHUN
Between
THE QUEEN (on the application of)
AMITKUMAR PRAVINBHAI PATEL
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr R Sharma of Counsel, instructed Direct Access on behalf of the Applicant.
Mr Z Malik of Counsel, instructed by the Government Legal Department, on behalf of the Respondent
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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(1) The decision of the High Court in R (SM & Others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) relating to the 2009 Discretionary Leave policy and instruction only applies to cases where the decision to grant leave to remain was made prior to 24 June 2013.
(2) There is no obligation on the Secretary of State to grant ILR or to consider granting ILR in circumstances where no formal application for ILR has been made.
(3) It is legitimate for the Secretary of State to grant leave to remain for 30 months on an application that is decided on or after 9 July 2012 irrespective of when the application was made unless it was made between 9 July 2012 and 6 September 2012: see para [56] of Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74.
JUDGE ESHUN: This judicial review concerns a challenge brought by the applicant, a citizen of India, born on 1 April 1977. He has two dependants, namely, his wife, Daxaben Amitkumar Patel, born on 1 September 1977 and their child, a son, V, born on 23 December 2007. They are also Indian nationals. The applicant challenges the decision of the respondent, Secretary of State for the Home Department, on 10 July 2013 to grant him and his dependants discretionary leave to remain in the United Kingdom for a period of 30 months after his appeal was allowed in the First-tier Tribunal outside the Immigration Rules.
2. Permission to bring judicial review proceedings was granted by Upper Tribunal Judge Gleeson at an oral hearing on 22 September 2014.
3. The applicant raised two grounds. The first ground contended that the Secretary of State acted inconsistently with her duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) as elucidated in R (SM & Others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin); and secondly the Secretary of State acted unlawfully in applying the provisions introduced by HC 194 and associated policies because the relevant implementation provision provides that they would not apply to applications made before 9 July 2012.
Facts
4. The applicant and his wife arrived in the United Kingdom with entry clearance as visitors on 30 June 2004. Their visit visas expired on 10 December 2004 but they continued to reside here unlawfully. Their child, V, was born in the United Kingdom.
5. On 20 June 2011 the applicant with his wife and child made an application for discretionary leave to remain in the United Kingdom relying on Article 8 of the ECHR. On 22 July 2011, their application was refused by the Secretary of State without a right of appeal. He did not leave the United Kingdom and on 9 December 2011, the Secretary of State issued an appealable decision to remove him under Section 10 of the Immigration and Asylum Act 1999.
6. On 22 December 2011 the applicant lodged an appeal to the First-tier Tribunal against the respondent’s decision to remove him. On 13 February 2012 the appeal was heard by First-tier Tribunal Judge Warner and allowed on the ground that the respondent’s decision was not in accordance with the law. The First-tier Tribunal found that the respondent had not given consideration to the best interests of the applicant’s child, therefore failing to discharge her duty under Section 55 of the 2009 Act when making the decision under appeal. The matter was remitted to the respondent for a lawful decision to be made.
7. According to Mr Sharma, following Judge Warner’s determination, further decisions were made by the respondent on 7 March 2012 which were flawed for the same reason as the decision allowed on appeal by First-tier Tribunal Judge Warner. On 30 October 2012 the respondent re-made her decision rectifying the errors and issued an appealable decision in respect of the applicant, his wife and child. The subsequent appeals were heard together by Judge Warner on 7 March 2013. In a decision promulgated on 13 March 2013, Judge Warner allowed the appeals on the ground that the removal of the applicant and his family members from the United Kingdom would be unlawful for being incompatible with Article 8.
8. The Secretary of State, having regard to the First-tier Tribunal’s determination, granted the applicant, his wife and child limited leave to remain for 30 months on 10 July 2013. The grant of leave and conditions attached to them were communicated by the Secretary of State in her letter of 9 July 2013 and 10 July 2013.
9. Mr Sharma relied on his skeleton argument. He said the applicant’s case raises two grounds. The first ground is the wholesale failure by the respondent to consider Section 55 at the second stage of the decision making, which was when the respondent was considering the length of leave to be granted to the applicant. The second ground is that the applicant ought to have been granted leave that was in place at the time he made his application on 20 December 2011 and not at the date of the decision under challenge, namely 10 July 2013.
10. In relation to the first ground Mr Sharma relied on SM, [57] where Mr Justice Holman held that the relevant 2009 Discretionary Leave policy and instruction document was unlawful because it effectively precluded case specific consideration of the welfare of the child concerned in making the discretionary decision whether to grant discretionary leave or ILR. Further, the policy and instruction failed to give proper effect to the statutory duty under Section 55.
11. Mr Sharma submitted that the issue is not whether ILR should have been granted but whether the respondent considered Section 55 in her decision to grant discretionary leave and whether she applied her discretion when considering how long the leave should be granted for.
12. Mr Sharma submitted that Mr Justice Holman noted that the overarching submission for the Claimants was that
“when making decisions concerning children officials must grasp the nettle at the outset and make a realistic appraisal whether ‘it is clear from the outset that a child’s future is going to be in the UK’ and make decisions accordingly”. [23].
Mr Sharma submitted that in the present case, the respondent is unable to establish that this question had been properly addressed. Given the decision of the First-tier Tribunal, it was undoubtedly clear that the applicant’s child’s future was in the United Kingdom.
13. Mr Sharma noted that the respondent made reference to R (Alladin and Wadhwa) v Secretary of State for the Home Department [2014] EWCA Civ 1334. He submitted that although the Court of Appeal found that there was a policy in place, it was unlawful for the same reason as in SM; neither applicant had demonstrated that the grant of indefinite leave to remain was more appropriate than following the policy itself.
14. Mr Sharma also made reference to Wadhwa in which the applicant was subject to a removal direction for a number of years. Eventually the Secretary of State decided to grant the applicant leave to remain. The Court of Appeal held that the applicant did not at any stage ask for ILR. Mr Sharma asked me nevertheless to find that the facts in Wadhwa are similar to the facts in this case. The distinct feature in the instant appeal is that Judge Warner found that “it is in the best interests of VP that he remain in the United Kingdom and continue to develop his established private life”. He submitted that the best interest of the third applicant to remain in the UK has to be considered in line with the respondent’s Section 55 duties at both stages, namely the grant of leave, and the length of leave. There is no evidence at all that the respondent applied her mind to her Section 55 duty in respect of her consideration of the length of leave.
15. Mr Sharma relied on R (NS and others) v Secretary of State for the Home Department [2014] EWHC...
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