Upper Tribunal (Immigration and asylum chamber), 2015-05-29, [2015] UKUT 328 (IAC) (R (on the application of FBL) v Secretary of State for the Home Department (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Grubb |
| Status | Reported |
| Date | 29 May 2015 |
| Published date | 11 June 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 10 April 2015 |
| Subject Matter | IJR |
| Appeal Number | [2015] UKUT 328 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of FBL) v Secretary of State for the Home Department IJR [2015] UKUT 00328 (IAC)
IN the matter of an application for judicial review
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Heard at Cardiff Civil Justice Centre |
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On 10 April 2015 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE QUEEN (ON THE APPLICATION OF FBL)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Mr C Jowett instructed by Albany Solicitors
For the Respondent: Ms M Bayoumi instructed by Government Legal Department
ANONYMITY ORDER
I was invited by both parties to make an anonymity order to protect the identity of the applicant’s children. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269 as amended) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the applicant, his partner or children. For the avoidance of doubt, this order also applies to both the applicant and to the respondent. A failure to comply with this order could lead to contempt of court proceedings.
JUDGMENT
(HANDED DOWN ON FRIDAY 29 MAY 2015)
Judge Grubb:
Introduction
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The applicant, who was born on 11 January 1983, is a national of the People’s Republic of China (China). He arrived in the United Kingdom on 6 January 2007 and claimed asylum. That application was refused by the Secretary of State on 16 February 2007. There was no appeal. Thereafter, the applicant ceased contact with the Home Office until 20 June 2012.
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Sometime in December 2008 the applicant began a relationship with a Chinese national, “QC”. The applicant and QC have two children who were born respectively on 20 January 2010 (“AXL”) and 10 April 2011 (“AYL”) in the United Kingdom.
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The applicant’s partner, QC, came to the UK on 11 May 2009 using a false passport. On 13 November 2009, she claimed asylum and that application was refused by the Secretary of State on 21 December 2009. Thereafter, QC appealed and her appeal was dismissed by an Immigration Judge on 16 February 2010. She did not appeal that decision. On 24 November 2011, further submissions were lodged on her behalf and on 17 January 2013 those submissions were rejected. However, on 22 January 2013, a decision was made by the Secretary of State applying the “exceptional circumstances” criteria in para 353B of the Immigration Rules to grant QC and her two children, AXL and AYL, discretionary leave until 22 July 2015.
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The applicant made contact with the Home Office on 20 June 2012 and on 10 April 2013 he made further submissions to the respondent relying upon his private and family life in the UK, namely his relationship with his partner and two children.
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On 18 February 2014 the applicant’s legal representatives sent a ‘chasing’ letter to the respondent. On 25 February 2014, the respondent replied indicating they would review the applicant’s case within 12 months. On 26 February 2014, the applicant’s MP wrote to the respondent who responded on 28 February 2014 indicating that the aim was to review the applicant’s case by December 2014.
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On 7 July 2014, the respondent refused the applicant’s claim for leave under the Immigration Rules (Statement of Changes in Immigration Rules, HC 395 as amended) and under Art 8 of the ECHR. In addition, the Secretary of State concluded that the applicant’s claim to remain in the UK did not amount to a ‘fresh claim’ under para 353. (The detailed reasons are dated 8 July 2014 but I will throughout refer to the decision as the “7 July 2014” decision.)
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On 31 July 2014, the applicant’s solicitor sent a pre-action protocol letter (PAP) to the respondent. On 16 August 2014, the Secretary of State responded to the PAP letter maintaining her decision to refuse leave to the applicant and that his claim was not a ‘fresh claim’.
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On 30 September 2014, the applicant filed these proceedings challenging the respondent’s decisions of 7 July 2014 and 16 August 2014. In summary, two Grounds were relied upon:
(1) the respondent’s decision to refuse leave under Art 8 was unlawful as the respondent had applied a test of ‘exceptionality’; had failed to have regard to the ‘best interests’ of the children and had failed properly to consider all the circumstances; and
(2) the decision that the submissions did not amount to a ‘fresh claim’ was irrational and the respondent had failed to apply ‘anxious scrutiny’ in reaching her conclusion.
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On 8 December 2014, HHJ Lambert (sitting as a Judge of the Upper Tribunal) granted permission to bring these proceedings.
The Applicant’s Further Submissions
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In their letter of 10 April 2013, the applicant’s legal representatives set out further submissions which formed the basis upon which the applicant should be granted leave under Art 8 of the ECHR. In that letter, reliance is placed upon the relationship between the applicant and QC and also that they have two children, AXL and AYL who were born in the UK. The applicant relies on the fact that QC and the two children have discretionary leave which is valid until July 2015 and that the applicant plays an “active role” in the children’s day to day lives. Accompanying the application were the passports of the applicant’s partner and children; the birth certificates of the two children, and a number of other supporting documents such as photographs of the applicant with his partner and children.
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The representative’s letter puts the applicant’s claim as follows:
“We respectfully advise you as to a significant change to our client’s circumstances in the UK. Our client has been in a serious, and long standing relationship with [QC] since December 2008 and they have two children together, [AXL] and [AYL]. [QC] and their children currently hold Limited Leave to Remain for 30 months. Our client, partner and children are currently unable to legally live together permanently due to our client’s lack of immigration status but hope to do so in the future. Despite this, he is able to reside with his partner and children at times and has been formally included in their pending housing application.
Our client plays an active role in the day to day life of his children and is central in the upbringing of both children. Our client and [QC] share responsibility for all decision making concerning the future of the child”.
Then, the letter set out some points and relevant case law relating to the existence of “family life”.
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The letter continues:
“Furthermore, with reference to s55 we believe that it would be in the children’s best interests to remain in the UK where their mother is based. If our client is forced to leave the UK, then this will lead to the separation of the family unit, as [QC’s] current status does not allow her to pursue an Entry Clearance application for our client to lawfully return to the UK on the basis of his family and exercise his family life”.
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The letter then concludes as follows:
“It is considered that the above representations and supporting evidence clearly demonstrate our client maintains a strong private and family life in the UK and that the removal of our client from the UK in light of the above would lead to a disproportionate breach of his Article 8 ECHR right to family life. We submit that a grant of Limited Leave to Remain in line with [QC] and their children would be appropriate in respect of the above.
We wish to remind you of the very low burden of proof required when considering what amounts to a “realistic prospect of success” as this does not mean will succeed, but may succeed before an Immigration Judge”.
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On 7 July 2014, the respondent made the decision which is principally challenged in these proceedings.
The Challenged Decisions
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The Secretary of State considered the applicant’s claim to remain in the UK based upon his family and private life under the Immigration Rules and Art 8 of the ECHR in her decision letter of 7 July 2014. Although they have been subject to some subsequent amendment, I set out below the Rules as they were in force at the date of decision.
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Having noted that the applicant relied upon the fact that he had a partner in the UK and two children aged 3 and 4, all of whom were Chinese nationals, the Secretary of State first considered the applicant’s claim under the “partner” Rule, namely R-LTRP of Appendix FM. In order to succeed under R-LTRP, R-LTRP1.1(c)(ii) required that:
“(ii) the applicant meets all the requirements of Section E-LTRP: Eligibility for leave to remain as a partner; ...”.
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Alternatively, by virtue of R-LTRP1.1(d)(ii) and (iii):
“(ii) the applicant must meet the requirements of paragraph E-LTRP1.2–1.12 and E-LTRP2.1; and
(iii)...
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