Upper Tribunal (Immigration and asylum chamber), 2015-07-30, [2015] UKUT 464 (IAC) (R (on the application of Myrie) v Secretary of State for the Home Department (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Coker |
| Status | Reported |
| Date | 30 July 2015 |
| Published date | 24 August 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 06 January 2015 |
| Subject Matter | IJR |
| Appeal Number | [2015] UKUT 464 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of Marie) v Secretary of State for the Home Department IJR [2015] UKUT 00464 (IAC)
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Heard at Field House |
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On 6th January 2015 And subsequent to written submissions |
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Before
UPPER TRIBUNAL JUDGE COKER
Between
THE QUEEN ON THE APPLICATION OF
DEBBIE ANN MYRIE
Applicant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Mr P Saini, counsel, for the applicant (instructed by Greenland lawyers LLP)
Mr W Hansen, counsel, for the respondent (instructed by Treasury Solicitor)
JUDGMENT
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The applicant applied for leave to remain on the basis of her Article 8 ECHR rights to family and private life such application having been made on either 7th March 2012 or 2nd May 2012 when she was in the UK unlawfully as an overstayer.
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On 2nd April 2014 Jeremy Baker J and Upper Tribunal Judge Storey granted the applicant permission to bring a judicial review of the decision of the respondent dated 28th June 2013 refusing to grant her leave to remain in the following terms:
1. The applicant is a 36 year old Jamaican National called Debbie Ann Myrie who was born on 23 September 1977 and spent the first 32 years of her life in Jamaica. On 6 March 2009 she entered the United Kingdom on a visit visa valid until 24 April 2009. At the end of that period she remained in the United Kingdom without permission for a period of three years.
2. On either 7 March or 2 May 2012 the applicant applied for leave to remain on the basis of her Article 8 ECHR rights to family and private life. The application contained details of her life in the United Kingdom, namely that she lived with her sister and her family which comprises four nieces and nephews, the elder two of whom she had looked after for a significant period of time when they were younger and had been living in Jamaica, the younger two of whom she had helped look after while she had been living in the United Kingdom. She also said that she was in a long term relationship.
3. The application was considered by the Secretary of State for the Home Department who refused it in a decision dated 28 June 2013. The Secretary of State set out that under Appendix FM of the Immigration Rules the applicant did not qualify as someone who had either a sufficient period of continuous residence in the United Kingdom, nor was she satisfied that the applicant had no ties with Jamaica. Furthermore, she did not accept that there were any exceptional circumstances requiring her to consider the matter further under Article 8 outside the Rules.
4. On 1 October 2013 the applicant sought permission to apply for judicial review of the decision of the Secretary of State on the basis that the respondent had failed to take into account that the applicant had no ties with Jamaica, and the best interests of her nieces and nephews. That application, albeit out of time, was considered and refused by Upper Tribunal Judge Allen on 28 January 2014. Any request for oral renewals were ordered to be filed within three days. Although the request filed on 4 February 2014 is out of time we have considered it.
5. It is apparent that unless compelling circumstances exist an applicant’s Article 8 rights are to be considered under Appendix FM of the Immigration Rules – Nagre v SSHD [2013] EWHC 720 (Admin), SSHD v Gulshan [2013] UKUT 00640 (IAC) and Shahzad [2014] UKUT 85 (IAC).
6. Mr Saini, who appears on behalf of the applicant, asks us to look at the letter of refusal dated 28 June 2013 and submits that whilst the respondent appears to engage with considerations such as the relatively brief period of residence in the UK and the unlikelihood of the applicant having lost ties with Jamaica where she has spent most of her life, it did not refer to the family life which the applicant states that she enjoys with her sister and her sister’s children. He refers us to Zoumbas v SSHD [2013] UKSC 74 which indicates that the interests of children are a primary consideration under Article 8 and argues that the Secretary of State has omitted to consider this aspect of the applicant’s family life or, if she had done so, she has failed to give any reasons for its failure to persuade her to grant the applicant leave to remain.
7. Ms Paterson, who appears on behalf of the respondent, highlights the long period of time that the applicant had spent in Jamaica, the comparatively short period of time she spent in the United Kingdom and the inherent unlikelihood of the applicant not retaining ties with Jamaica. She refers us to Kugathas v SSHD [2003] EWCA Civ 31 and submits that in relation to older children an enhanced degree of emotional relationship is required to be established if family life is said to exist between them and an adult. She submits that this was not a factor which was particularly highlighted by the applicant. Furthermore, although there was no reference to this matter in the refusal letter, there was a reference to exceptional circumstances from which it can be implied that the Secretary of State gave due consideration to this matter.
8. A further point has been raised in the course of the hearing by Mr Saini and he seeks permission to amend the claim form to include it in the grounds. He has referred us to the “Statement of Changes in the Immigration Rules” with particular reference to the date of their implementation, namely:
“However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the Rules in force on 8 July 2012.”
Mr Saini submits that this provision means that the applicant’s application for leave to remain ought to have been considered under the old, rather than the new rules.
9. In response Ms Paterson acknowledges that this may be correct. However she submits that this would not have made any difference to the ultimate result, as the same decision would have been reached under either set of rules.
10. On any view the likelihood of the applicant being able to establish that she had no ties with Jamaica was poor, and this was a matter which we can ascertain was considered by the respondent. However, although the applicant’s assertion of family life was not based upon her relationship with children of her own, but those of her sister, we are not in a position to assess her prospects of establishing family life, on this basis, as so poor that it did not require consideration by the respondent, and we are not able to satisfy ourselves that this matter was given due consideration by the respondent when making the decision to refuse leave to remain. Thus we consider that the applicant has an arguable public law challenge to this decision.
As we are giving permission for this ground to be argued, we will also allow the applicant to amend her grounds to include the matter raised during the course of the hearing concerning the correct rules under which the applicant’s application for leave to remain should have been considered. As this is acknowledged to be a matter which is arguable, we will also grant permission on that ground.
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The respondent, after permission to bring a judicial review had been granted for the above reasons then made two further decisions: the first on 24th July 2014 and the second on 30th October 2014. Mr Saini says that his instructions are that neither of those letters was received by his instructing solicitors until they were served attached to the respondent’s detailed grounds of defence which, he confirmed, had been received by the applicant’s solicitors on 3rd November 2014.
Preliminary issue
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Before me Mr Saini raised a preliminary issue namely that these two letters were
“unlawful supplementations of the original Refusal Letter” and that “Whilst the Defendant does not explicitly concede the error in the previous decision letter, her supplementation of that cursory letter is an obvious and unlawful attempt to inflect (sic) rationality and reasoning into the decision under challenge by way of supplementation. However the decision under challenge itself remains prima facie unreasoned and contrary to the above mentioned jurisprudence.”
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He submits that the two letters cannot form part of the claim and the respondent cannot be permitted to perfect her reasons by supplementation and embellishment. All that is permitted is elucidation. He submitted that the Secretary of State should either have defended the original decision or offered settlement and reconsideration and then, in the light of any further information received, reconsidered the decision.
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In support of his submission Mr Saini relies upon Ermakov, R (on the application of) v Westminster City Council [1995] EWCA Civ 42 which was upheld in Lanner Parish Council, R (on the application of) v The Cornwall Council & Anor [2013] EWCA...
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