Upper Tribunal (Immigration and asylum chamber), 2020-01-06, JR/05723/2018

JurisdictionUK Non-devolved
Date06 January 2020
Published date10 January 2020
Hearing Date13 December 2019
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberJR/05723/2018

JR/5723/2018

IAC-FH-CK-V1


Upper Tribunal

Immigration and Asylum Chamber

JR/5723/2018



Field House,

Breams Buildings

London

EC4A 1WR


Heard on: 13th December 2019


Before


UPPER TRIBUNAL JUDGE KEITH



Between


The Queen (on the application of Mr Arifuzzaman Rana)

Applicant

v


Secretary of State for the Home Department

Respondent


Mr M West, instructed by Liberty Legal Solicitors, appeared on behalf of the Applicant.

Mr Z Malik, instructed by the Government Legal Department, appeared on behalf of the Respondent.

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APPLICATION FOR JUDICIAL REVIEW

JUDGMENT


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  1. This is the approved written record of the judgment which was given orally at the end of the hearing on 13 December 2019.

The application

  1. The applicant applied on 24 August 2018 for judicial review of, and relief from, the respondent’s decision of 22 June 2018 (the ‘Decision’), to refuse to treat the applicant’s application for leave to remain on the basis of his long residence as a fresh claim, for the purposes of paragraph 353 of the Immigration Rules.

  2. The applicant claimed that he should have been granted an in-country right of appeal in respect of his application, as it included a human rights appeal; and that the respondent’s conclusion that he did not have the required period of continuous lawful residence was irrational.

  3. On 7 March 2019, Upper Tribunal Judge Hanson refused permission on the papers for the application to proceed, but the applicant renewed his application and at an oral renewal hearing, on 4 June 2019, Upper Tribunal Judge Kamara granted permission for review of the Decision to proceed to full judicial review. She regarded it as arguable that the appellant’s circumstances could be distinguished from those in the Upper Tribunal case of R (Ahmed) v SSHD (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC) (at the time of the permission hearing, the Court of Appeal had not given its decision in R (Ahmed) v SSHD [2019] EWCA Civ 1070), in light of what she regarded as ‘concessions’ in the Decision, the nature of which are unclear. She regarded it as arguable that the applicant had resided lawfully in the UK for at least 10 continuous years, apart from a period of 20 days immediately prior to his application of 20 October 2016. She concluded that it was at least arguable that a First-tier Tribunal could legitimately allow his appeal on human rights grounds, on the basis that he met the requirements of paragraph 276B of the Immigration Rules at the time that the respondent considered his application.

Previous Orders and Judgments

  1. Upper Tribunal Judge Kamara had, when granting permission, issued directions for the respondent to file detailed grounds of defence, but as the applicant failed to pay the continuation fee, his application was automatically struck out on 25 June 2019. His application was reinstated by Upper Tribunal Lawyer Lewenstein in an order sent to the parties on 16 July 2019 and the respondent was granted a further extension of time to file detailed grounds of defence.

Grounds

  1. The applicant challenged the Decision, on the following grounds, which I summarise below:

  1. Ground (1): whilst the applicant made his application seven months and 13 days prior to completion of 10 years residence, the respondent’s policy indicated that an earlier application should be granted if, when it was considered, within 20 days, the applicant would complete the required qualifying period for continuous lawful residence, provided that he met all of the other Immigration Rules relating to long residence. The respondent had made the Decision on 22 June 2018, by which time the applicant had been resident in the UK for over 11 years and had never breached any immigration laws except for a period of overstaying from 1 October 2016 to 20 October 2016. The applicant asserted that this should be disregarded as a result of paragraph 39E of the Immigration Rules, as confirmed by the respondent’s policy, which instructed her caseworkers to disregard the absence, pursuant to paragraph 39E.

  2. Ground (2): whilst the respondent had refused the applicant’s application, to the extent that it related to his human rights, she had erred in refusing to provide a statutory right of appeal.

  3. Ground (3): because the respondent had failed to refer to a previous certification of an earlier human rights application being ‘maintained’ in the Decision, the respondent erred in refusing to treat the subsequent application as a fresh claim.

The hearing before me

The challenge on the basis that the appellant should have been given the right of appeal

  1. The representatives agreed that I should deal with the second ground, as if it succeeded, I would have to quash the Decision. The ground was based on a decision of the Upper Tribunal, Sheidu (Further submissions; appealable decision) [2016] UKUT 00412 (IAC), which related to a statutory appeal, but which also dealt with fresh claims under paragraph 353 of the Immigration Rules. What was said was that the respondent may, in reaching a decision, decide a human rights application afresh, even if the decision then goes on to consider and purport to apply paragraph 353 of the Immigration Rules and refuse to treat the application as amounting to a fresh claim. In that case, reliance on paragraph 353 is without effect and the appellant should be granted a right of appeal.

  2. In developing the submissions before me, Mr West relied also on the substantive judicial review decision of R (Mohammad Kamrul Islam) v SSHD JR/8109/2018, which although not reported formally, was nevertheless a substantive decision of the Upper Tribunal (a panel of Upper Tribunal Judges Kopieczek and Sheridan) and said to be of persuasive authority, in the absence of any other reported authority. Mr West asserted that the facts of the case in Islam, were ‘on all fours’ or ‘virtually identical’ to the facts in this application, and the Upper Tribunal in that case had quashed the decision refusing to treat as a fresh claim the application in that case. I should similarly quash the Decision. There should be a declaration to the effect that the applicant had an in-country right of appeal to the First-tier Tribunal.

  3. I accepted that the wording of the Decision appears to be similar to that in Islam and it was unnecessary for Mr West to address me in detail on a line-by-line comparison of the two decisions.

  4. Mr Malik submitted, on behalf of the respondent, that setting aside, for one moment, the issue of whether the Islam decision was wrongly decided in light of the Supreme Court’s decision in Robinson v SSHD [2019] UKSC 11, and the asserted ratio in the later case that the respondent must accept an application as a fresh claim under paragraph 353 of the Immigration Rules, before it generates a right of appeal (see [64] of Robinson), on a more practical note, in this case, the applicant had an alternative remedy which he had not sought to exercise, specifically to present a statutory appeal to the First-tier Tribunal, to allow them to decide whether to accept that appeal.

  5. In the case of R (Khan) v SSHD [2017] EWCA Civ 424, the Court of Appeal, in endorsing the Upper Tribunal decision of Principal Resident Judge O’Connor, emphasised that where there were alternative remedies available, specifically the presentation of a statutory appeal to the First-tier Tribunal, it would not be appropriate for the Upper Tribunal to grant judicial review. Mr Malik emphasised that it was far from clear that the Upper Tribunal in Islam were ever referred to Khan. Even if it were appropriate for me to consider Islam, which Mr Malik disputed as it was not a reported authority, it could be distinguished on the basis of Khan.

Discussion and conclusions

  1. I accept Mr Malik’s submissions that this is a case which falls squarely within Khan. The arguments raised by Mr West (such as the possibility that the First-tier Tribunal might reject a statutory appeal, which would then necessitate a further judicial review application, with additional cost, and that it was more convenient for me to decide the issue, given its complexity) were precisely those considered and rejected by the Upper Tribunal and Court of Appeal in Khan. Mr West has raised no practical reason why the applicant in this case could not seek to present a statutory appeal to the First-tier Tribunal (for example, any point that an appeal would be out of time, which will be for the First-tier Tribunal to consider). My conclusion is fortified by [19] and [23] of Khan, where the Court of Appeal stated:

19. My starting-point is that it is both natural and more convenient that where an issue arises as to the jurisdiction of a statutory tribunal that issue should be determined in the first instance by the tribunal itself, which can then proceed to consider the substantive...

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