Upper Tribunal (Immigration and asylum chamber), 2019-04-04, JR/04627/2018
| Jurisdiction | UK Non-devolved |
| Date | 04 April 2019 |
| Published date | 05 November 2019 |
| Hearing Date | 01 April 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/04627/2018 |
UTIJR6
JR/4627/2018
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
MD TAREK AZIZ ROMAN
Applicant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent
Before
Upper Tribunal Judge Finch on 1 April 2019
Application for judicial review: substantive decision
Having considered all documents lodged and having heard Mr. P. Turner of counsel, instructed by Hubers Law on behalf of the Applicant, and Mr. N. Ostrowski of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 1 April 2019.
Decision: the application for judicial review is refused
THE HISTORY OF THE APPLICATION FOR JUDICIAL REVIEW
1. The Applicant is a national of Bangladesh. He entered the United Kingdom as a student on 7 July 2012 and was subsequently granted further leave to remain as a Tier 4 (General) Student until 23 January 2017. He applied for leave to remain outside the Immigration Rules on 19 January 2017 but on 19 March 2017 he varied this application to one for leave to remain on the grounds of private and family life. His application was refused on 1 December 2017 and certified as clearly unfounded.
2. On 14 December 2017 he applied for leave to remain on compassionate grounds. It is the Respondent’s case that on 5 January 2018 the Applicant was notified of the need to enrol his biometrics within 15 working days but that he did not do so. It is also the Respondent’s case that he was sent a further notification letter on 9 April 2018, giving him 10 days to enrol his biometrics. The Applicant’s application was rejected on 30 April 2018, on the ground that he had not enrolled his biometrics. He served a pre-action protocol letter in relation to this decision on 12 June 2018 and the Respondent replied to this letter on 25 June 2018, maintaining his decision.
3. Meanwhile, on 18 June 2018 the Applicant had made a further application for leave to remain on compassionate grounds.
4. The Applicant lodged his claim for judicial review on 4 July 2018, challenging the decision dated 1 June 2018. The Respondent filed his acknowledgment of service and summary grounds of defence on 9 August 2018. Upper Tribunal Judge Macleman refused the Applicant permission on the papers on 7 November 2018.
5. On 17 January 2019, Upper Tribunal Judge Blum granted the Applicant permission after an oral hearing.
THE SUBSTANTIVE HEARING
6. Time for the Respondent to file and serve his detailed grounds of defence was extended until 28 February 2019 and these grounds were filed on that date. Time for the Applicant to file and served any further evidence and his comprehensive hearing bundle was also extended until 18 March 2019. In fact, the Applicant filed his hearing bundle and authorities bundle on 20 March 2019.
7. The Respondent received the Applicant’s skeleton argument on 13 March 2019 and I subsequently extended time for the Respondent to file and serve his skeleton argument until 29 March 2019 and it was served on that date. Both counsel made oral submissions and I have referred to these submissions, where relevant, below.
SUBSTANTIVE DECISION
RELEVANT LEGAL PROVISIONS
8. The power to require an applicant to provide biometric information derives from regulations made under section 5 of the UK Borders Act 2007.
9. Section 7 of the UK Borders Act 2007 states that:
“(1) Regulations under section 5(1) must include provision about the effect of failure to comply with a requirement of the regulations.
(2) In particular, the regulations may-
…
(b) require or permit an application or claim in connection with immigration to be disregarded or refused
…”
10. Regulation 3 of the Immigration (Biometric Registration) Regulations 2008 (“the Regulations”) states that:
“(1) A person subject to immigration control must apply for the issue of a biometric immigration document where he-
(a) satisfies the condition in paragraph (2)…
(2) The condition is that whilst in the United Kingdom the person makes an application-
(a) for limited leave to enter or remain…”
11. Regulation 23(1) states that:
“Subject to paragraphs (3) and (4), where a person who is required to make an application for the issue of a biometric immigration document fails to comply with a requirement under these Regulations, the Secretary of State-
(a) make take any, or any combination, of the actions specified in paragraph (2); and
(b) must consider giving a notice under section 9 of the UK Borders Act 2007”.
12. Paragraph (2) states:
“The actions specified are to-
(a) refuse an application for a biometric immigration document;
(b) treat the person’s application for leave to enter or remain or for entry clearance as invalid…”
13. Home Office guidance on Biometric Information states:
“A standard route application made in a category that requires biometric information enrolment is valid if:
-
The application meets the normal validation requirements. And
-
The applicant attends at a participating Post Office to enrol their biometric information within 15 days from the date of their biometric information notification letter. No appointment is needed to enrol at a Post Office.
…
You must send a warning letter to applicants, after the 15-day period has passed if they have not attended at a Crown Post Office to enrol their biometric information.
If the applicant does not attend at a participating post office, after the further warning period, set out in the warning letter, you must reject their application”.
14. Paragraph 39E of the Immigration Rules states that:
“This paragraph applies where
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of any time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review of appeal being concluded, withdrawn or abandoned or lapsing”.
ALLEGED BREACH OF THE REGULATIONS
15. In his claim form, the Applicant challenged the decision by the Respondent, dated 30 April 2018, that he had not made a valid application for leave to remain, as he had failed to enrol his biometrics, as requested. It was his case that neither he nor his previous solicitors had received the letters, dated 5 January 2018 and 9 April 2018, inviting him to enrol his biometrics. Therefore, it was submitted that the decision, dated 30 April 2018, was unlawful and irrational.
16. The Applicant accepts that Universal Solicitors received a letter from the Respondent, dated 5 January 2018, acknowledging his application for leave to remain and stating that there may be a delay in considering his application due to the complexity of his application.
17. It is the Respondent’s case that he also sent the letters, dated 5 January 2018 and 9 April 2018, requiring the Applicant to enrol his biometrics in accordance with section 7 of the UK Borders Act 2007 and the Immigration (Biometric Registration) Regulations 2008. He relied on an extract from a copy of the Applicant’s GCID Case Record Sheet, which had been heavily redacted. On page 3 of 11 of the sheet, it was possible to read:
“Unit:- DPTS9:– 05-Jan-2016
3911 issued to rep and applicant
Unit:- DPTS9:- 09-Apr-2018”.
18. This indicates that letters of these dates had been drafted and prepared for service. The letters said to have been sent to the Applicant on 5 January 2018 and 9 April 2018 were written by a case worker in the Data Proc Team Sheffield 9, which abbreviated would read “DPTS9”. This indicates that the letters were prepared by the appropriate part of the Home Office. At the hearing, I was also informed that “3911” was the code for the type of letter sent.
19. The Applicant relied on the fact that the Respondent had not lodged any evidence to confirm that the letters, dated 5 January 2018 and 9 April 2018, had actually been posted to the Applicant. There was also a copy of an email sent by Universal Solicitors to the Respondent on 24 April 2018, requesting service of a biometric letter.
20. When granting permission, Upper Tribunal Judge Blum found that “given the unnecessary extent to which the GCID notes were redacted it is, at least at this stage, arguable that the Respondent unlawfully rejected the 14 December...
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