Upper Tribunal (Immigration and asylum chamber), 2016-10-31, JR/7355/2015
| Jurisdiction | UK Non-devolved |
| Date | 31 October 2016 |
| Published date | 24 November 2017 |
| Hearing Date | 01 September 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/7355/2015 |
R (on the application of Asadiyeh) v. SSHD JR / 7355 / 2015
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JR/7355/2015
UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Judicial review Decision Notice
The Queen (on the application of Zahra Shojaei Asadiyeh)
[ANONYMITY ORDER NOT MADE]
Applicant
and
Secretary of State for the Home Department Respondent
Before Upper Tribunal Judge Gill
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Mr J Walsh of Counsel instructed by Behbahani & Co Solicitors on behalf of the applicant and Mr Z Malik of Counsel instructed by the Government Legal Department on behalf of the respondent, at a hearing at Field House, London, on 1 September 2016
Decision: the application for judicial review is refused
Judge Gill:
Introduction and background facts:
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A Tier 1 (General) Migrant (amongst others) who has “spent a continuous period” of 5 years lawfully in the United Kingdom (hereafter referred to for short as the “continuous residence” requirement) and who satisfies the other requirements listed in para 245CD of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereafter referred to individually as a “Rule” and collectively the “Rules”) will on application be granted indefinite leave to remain (“ILR”). Para 245CD provides that, if the requirements listed in para 245CD are not met, the application “will be refused”.
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The issue in this case is whether the respondent made a public law error in deciding that the applicant had not “spent a continuous period” of 5 years lawfully in the United Kingdom as required by para 245CD(c) and (d). If she did not, whether she erred in law in failing to exercise her discretion outside the Rules and grant the applicant ILR.
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The applicant contends that all (or nearly all) of the period between 15 March 2010 (the date when she was granted entry clearance as a Tier 1 (General) Migrant) and 17 October 2010 (the first date she arrived in the United Kingdom after entry clearance was issued on 15 March 2010) should have been included by the respondent in calculating the continuous residence requirement because she had submitted medical evidence which explained that she was unable to travel to the United Kingdom in the period between 24 May 2010 and 17 October 2010. She had also explained that she was present in Iran when entry clearance was issued on 15 March 2010 for work-related reasons. Alternatively, the failure to grant her ILR outside the Rules was unlawful, given her entire history and background, including the explanation given for travelling to the United Kingdom on 17 October 2010.
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The applicant's case is explained in greater detail below. In a nutshell, she contends that the continuous residence requirement in para 245CD(c) and (d) must be interpreted flexibly, from which it follows (it is contended) that the Secretary of State has a discretion in deciding whether the continuous residence requirement is satisfied. The Secretary of State was therefore obliged to consider the medical evidence she had submitted but failed to do so or erred in doing so. Alternatively, the Secretary of State was obliged to consider the medical evidence in her consideration of the discretion outside the Rules but failed to do so or erred in doing so.
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The applicant is a national of Iran, born on 15 October 1962. She first arrived in the United Kingdom in 2002 with her husband (born on 21 June 1964) and two sons (born on 18 September 1991 and a date that is not apparent from the papers). She pursued her studies in the United Kingdom and qualified as a food consultant. She subsequently gained employment. Further details of her background are given at para 36 below. It is accepted on her behalf that there were gaps in her lawful residence in the United Kingdom prior to 15 March 2010 because her leave expired in September 2009.
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In October 2009, the applicant left the United Kingdom and travelled to Iran. Whilst in Iran, she applied for entry clearance as a Tier 1 (General) Migrant. On 15 March 2010, she was granted entry clearance as a Tier 1 (General) Migrant, valid from 15 March 2010 until 15 March 2013. The grant of entry clearance operates as leave to enter.
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On 16 March 2015, the applicant applied for ILR. This means that the relevant 5-year period of continuous residence required to be satisfied under para 245CD(c) and (d) was the period from 17 March 2010 until 16 March 2015. However, as is evident from the above, the applicant did not arrive in the United Kingdom until 17 October 2010.
The decisions and the grant of permission to apply for judicial review
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The respondent refused the applicant's application for ILR by a decision of 16 March 2015 (hereafter the “refusal decision”). This states (inter alia):
“As you entered the United Kingdom as a Tier 1 (General) Migrant on 17 October 2010 a continuous period of 5 years lawful residence in the United Kingdom, commenced from this date. You have therefore not completed a continuous lawful period of 5 years as of 16 March 2015 and your application falls for refusal.”
(emphasis added)
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On 29 March 2015, the applicant applied for administrative review.
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In both her initial application of 16 March 2015 and her application for administrative review, the applicant relied upon medical evidence, as follows:
(i) As at the date of the refusal decision, the respondent had before her a letter dated 8 March 2015 (A13) from Dr Sayed Majid Reza Alavi Dehkordi (MD, PhD) in which he said that he examined the applicant on 24 May 2010 after she had fallen heavily backwards, sustaining an injury to her back and bruising to her arm, hip and wrist. He found that her condition “affected [her] body spine, discs between the vertebrae, ligaments around the spine and discs, spinal inflammation, spinal cord, nerves and muscles”. He said that he recommended complete bed rest and physical therapy sessions consisting of traction, massage and diathermy three times per week from 24 May 2010 until 17 October 2010. During this period, it was advised that the applicant avoid standing, using the stairs, driving a car and travelling.
(ii) With her application for administrative review, the applicant submitted the following:
a) A second letter dated 18 March 2015 from Dr Dehkordi (A14) in which he clarified that his previous letter was a summary. He said that the applicant had been examined in hospital on 24 May 2015 because she could not move and had intolerable pain. She was therefore unable to travel at all in any circumstances in the period from 24 May 2010 to 17 October 2010.
b) A letter dated 18 March 2015 from Dr Clare Mason (A16) of Park View Surgery in Loughborough. Dr Mason was the applicant’s general practitioner. Dr. Mason said, inter alia, that the applicant was seen twice in 2010 when she was noted to have some bruising over her coccyx. An X-Ray of the lumbar spine in October 2010 showed no bony abnormality.
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By a decision of 31 March 2015 (hereafter the “administrative review decision”), the respondent maintained the refusal, stating (inter alia):
“Reasons why the decision has been maintained
You claim that when your application was assessed, the exercise of discretion was exercised in an unreasonable manner by the Secretary of State.
The test of unreasonableness that is used in assessing administrative review decision is ‘Wednesbury’ unreasonableness, that is, so unreasonable that no reasonable person acting reasonably could have made it (…).
You asked that discretion be exercised in your favour due to a medical condition which prevented you from travelling and therefore can account for your exceeding the 180 day limit permitted during the past 5 years of your continuous residency. The Secretary of State is unwilling to exercise discretion because a medical report by the [ ] Surgery in Leicester described symptoms that the Secretary of State does not find compelling enough to restrict travel.
We considered that discretion was exercised in a ‘Wednesbury’ reasonable manner because it was exercised in a manner such that a reasonable person could reasonably have reached that decision. Therefore we have maintained the original decision.”
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Para 6 of the respondent's response dated 5 June 2015 to the applicant's pre-action protocol (“PAP”) letter (A98-101) states, insofar as relevant:
“iv) The SSHD carefully considered the medical evidence submitted, including the medical report dated 08 March 2015 and letter dated 18 March 2015 from [Dr Dehkordi], an orthopaedic and arthroscopic surgeon based in Iran. The SSHD also considered the letter from [Dr Mason] dated 18 March 2015. Dr Mason confirmed that your client was seen twice in 2010 following...
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