Upper Tribunal (Immigration and asylum chamber), 2014-09-25, [2014] UKUT 440 (IAC) (R (on the application of Hoomragh Chua) v Secretary of State for the Home Department (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Craig |
| Status | Reported |
| Date | 25 September 2014 |
| Published date | 02 October 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 05 September 2014 |
| Subject Matter | IJR |
| Appeal Number | [2014] UKUT 440 (IAC) |
IN THE UPPER TRIBUNAL
R (on the application of Hoomragh Chua) v Secretary of State for the Home Department IJR [2014] UKUT 00440(IAC)
Field House
Friday, 5 September 2014
Before
UPPER TRIBUNAL JUDGE CRAIG
Between
HOOMRAGH CHUA
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr E Munir, instructed by Bukhari Chambers Solicitors appeared on behalf of the Applicant.
Ms J Smyth, instructed by the Treasury Solicitor appeared on behalf of the Respondent.
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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JUDGE CRAIG: The applicant in this case Mr Chua is a national of Mauritius who was born on 25 February 1964. He arrived in this country lawfully in 2001 as a visitor. It is said on his behalf that he had a small extension of leave granted although this has not been confirmed by the respondent. Whether or not this is the case is not relevant for the purposes of this application because it is common ground that at any rate since 2002 his stay in this country has at all times been without leave and during this period he has also worked although he has had no permission to do so.
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On 5 July 2012 the applicant applied to regularise his status by making an application for leave to remain outside the Immigration Rules. The claim was essentially on the basis of his Article 8 rights and has been fairly summarised in a skeleton argument which was provided for the purposes of this hearing by Ms Smyth who represents the respondent and reference will be made to the circumstances in which this was produced below. At paragraph 8 of the skeleton the applicant’s claim is summarised as follows:
“In essence the claimant’s Article 8 claim boils down to the following:
(a) He has been in the UK for over eleven years (the vast majority of it unlawfully);
(b) he lives with his sister;
(c) he plays a role in the lives of his family members (principally his siblings and nieces and nephews – his nephew submitted a letter saying that the claimant helped him with maths and ‘pointed out the dangers of life for the youth’) and
(d) he has a number of friends in the UK. He does not claim to have a relationship with a British citizen or person settled and present in the UK, nor any children.”
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This application was refused by the respondent on 12 August 2013 and the refusal letter is dated the same date. Turning to the refusal letter the respondent first considered whether or not the applicant satisfied the requirements of paragraph 276ADE of the Rules and having considered that he did not for reasons which I will summarise below then considered whether or not the application raised or contained any exceptional circumstances such that when considering the right to respect for private and family life contained in Article 8 of the ECHR, consideration was warranted outside the requirements of the Immigration Rules.
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With regard to the requirements under paragraph 276ADE the relevant part of that paragraph under which the application had to be considered was paragraph 276ADE(vi) which requires that the applicant at the date of application “is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”.
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As the respondent noted within the refusal letter the applicant was aged over 18 and had lived continuously in the UK for under twenty years and accordingly in order to succeed under the Rules would have to show (in order to meet the requirements of paragraph 276ADE(vi)) that he had no ties including social, cultural or family with his home country.
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With regard to this aspect of the claim the respondent’s decision was as follows:
“Having spent 37 years in your home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country”.
For this reason the respondent was not satisfied that the applicant could meet the requirements of paragraph 276ADE(vi).
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With regard to whether or not his application raised any exceptional circumstances such that consideration was warranted under Article 8 outside the requirements of paragraph 276ADE the respondent considered that no such exceptional circumstances were raised and accordingly the application had to be refused.
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The decision was made as noted on 12 August 2013 and these proceedings were brought on 7 November 2013 nearly three months after the date of the decision being challenged. Although the Rules provide as a long stop that an application will be out of time if not made within three months of the date of the decision being challenged, they do provide that the application should in any event be made promptly which arguably this application was not. However, this is not a point which has been taken on behalf of the respondent and so the application fell to be considered on its merits.
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Permission to bring these proceedings was granted, perhaps generously on the facts of this case, by another Upper Tribunal Judge for the following reasons:
“(1) As to the adequacy of the reasoning in the decision of 12/8/13, the extent of justification contained in the Acknowledgment of Service contrasts with the decision itself.
(2) The applicant’s criticism of the absence of a removal decision lacks reference to case law and to policy, but may be capable of development.”
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I should note at this stage that in the decision granting permission to bring these proceedings case management directions were set out and these included the following:
“• The applicant must serve a skeleton argument and trial bundle on the Tribunal and on any other person provided with the application form, no later than 21 days before the date of the hearing of the judicial review.
• The respondent and any other person wishing to make representations at the hearing must serve a skeleton argument on the Tribunal and on the applicant, no later than 14 days before the date of the hearing of the judicial review.
• The applicant must file an agreed bundle of authorities, not less than 3 days before the date of the hearing of the judicial review.”
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Regrettably those representing the applicant took no steps to comply with these directions. No justification for this has been advanced before the Tribunal. A skeleton argument was not served in advance of the hearing and a bundle was not produced, and nor was an authorities bundle produced by the applicant. The consequence of this has been that those representing the respondent were unable to submit their arguments within the timeframe envisaged in the directions and they waited until they could wait no longer before serving the skeleton argument to which I have already referred and a bundle of authorities which were very helpfully prepared by them although the directions envisaged that this bundle would be produced by the applicant. I should note in this regard that the respondent’s solicitors wrote to the applicant’s solicitors as long ago as 21 August 2014 in which they stated as follows:
“The applicant was due to file and serve his skeleton argument by 15 August 2014. Such skeleton argument has not been received by the Treasury Solicitor’s department. The respondent is due to file and serve her skeleton argument by 22 August 2014 but is not in a position to do so without sight of that skeleton prepared by the applicant.
I should be grateful if the applicant’s skeleton argument could be provided forthwith so that the respondent has the opportunity to both respond and to prepare the upcoming hearing.”
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Although the respondent was not able to have prepared a skeleton argument on her behalf until very late in the proceedings, this document was prepared by Ms Smyth of Counsel and has dealt with every aspect of this application, although had the respondent known in advance which of the applicant’s submissions were being pursued, this document would not have had to be so lengthy. I should state in this regard that Mr Munir who represented the applicant before the Tribunal today was not instructed until yesterday and had had no involvement in this application before then and I make no criticism whatsoever of his representation. He did the best he could in circumstances which must have been exceptionally embarrassing for him as he was put in a position where he had to submit a skeleton argument at the time of hearing knowing full well that this document should have been prepared and submitted some three weeks earlier. As I say he did the best he could and it is not his fault in any way that the directions given were not complied with. However, it is reprehensible that they were not and that no proper explanation has been put before the Tribunal as to why not. The upshot is that the substantive application...
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