Upper Tribunal (Immigration and asylum chamber), 2020-04-21, JR/03512/2019
| Jurisdiction | UK Non-devolved |
| Date | 21 April 2020 |
| Published date | 27 May 2020 |
| Hearing Date | 14 January 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/03512/2019 |
JR/3512/2019
UTIJR6
JR/3512/2019
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
MDA
(a protected party by his litigation friend the OFFICIAL SOLICITOR)
Applicant
v
Secretary of State for the Home Department
Respondent
Before Upper Tribunal Judge Kamara
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Ms A Weston QC, of Counsel, instructed by Birnberg Peirce Solicitors, on behalf of the Applicant and Ms J Anderson, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 14 January 2020.
Decision: the application for judicial review is refused
Introduction
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These judicial review proceedings, issued on 28 June 2019, challenge the respondent’s decision dated 1 April 2019 refusing to grant indefinite leave (ILR) to remain to the applicant. The applicant was granted Discretionary Leave to Remain (DLR) in a decision dated 28 January 2019 following his successful appeal before the First-tier Tribunal, which was allowed on human rights grounds.
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An application has been made anonymise these proceedings because the applicant lacks litigation capacity, he is detained in a psychiatric hospital and there is an order of the High Court to that effect. In these circumstances, it is appropriate for anonymity to be continued and therefore the following order is made:
“Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original applicant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. “
Procedural history
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The applicant, a Somali national, arrived in the United Kingdom clandestinely on 15 September 2008, aged 14, as an unaccompanied minor asylum-seeking child. He became a looked after child. He was detained under section 2 of the Mental Health Act 1983 (MHA) in November 2008. There followed further periods of detention and the applicant was in hospital when his asylum claim was refused on 18 March 2011. The applicant was granted 3 years’ DLR on Article 3 grounds owing to his mental ill health as well as the prospect of a breach of his Article 3 rights if removed to Somalia.
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Following the grant of DLR, the applicant continued to be either detained under the MHA or supported in the community. Periods in the community would be characterised by non-compliance with medication which led to a deterioration in his mental state and consequently, risky behaviour. He received diagnoses of complex PTSD, psychotic symptoms, learning disability and personality disorder.
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An application for further DLR was made on the applicant’s behalf in March 2014. That application was treated as withdrawn because social services informed the Home Office that the applicant wished to return to “Somalia, Somaliland or Puntland.”
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In December 2014, the applicant carried out an indecent assault on a member of staff while detained on a psychiatric unit. He was convicted of outraging public decency and sexual assault and sentenced to 18 months’ imprisonment. On 21 May 2015, the respondent wrote to the applicant to inform him of his liability to deportation and inviting submissions. On 18 September 2015, an order was made to deport the applicant which carried no right of appeal.
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On 15 December 2016, the applicant lodged an unlawful detention judicial review claim. That claim was allowed following a substantive hearing, namely MDA v SSHD [2017] EWHC 2132 (Admin), in which it was held that the applicant’s detention between 4 November 2015 and 3 February 2017 was unlawful because of the lack of procedural safeguards to enable him to engage in the immigration decision-making process and that there had been a breach of the Public Sector Equality Duty (PSED). The applicant appealed that decision, arguing that immigration detention had breached his Article 3 rights and that the Administrative Court ought to have decided whether damages should be nominal or substantial. In a judgment handed down on 17 July 2019, the applicant’s appeal was dismissed by the Court of Appeal, MDA and ASK v SSHD [2019] EWCA Civ 1239, albeit a declaration was made that sections 20 and 29 of the Equality Act 2010 (EA) had been breached.
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On 18 September 2017, an application to revoke the deportation order was made on the applicant’s behalf. Following a judicial review, the respondent granted the applicant a right of appeal by way of a decision dated 10 August 2018. That appeal was allowed under Articles 3 and 8 ECHR in a decision promulgated on 2 January 2019. On 28 January 2019, the respondent wrote to the applicant’s solicitors to inform them that the applicant was to be granted limited leave to remain in light of his allowed appeal. On 8 March 2019, Birnberg Peirce sent representations on the applicant’s behalf seeking the respondent’s discretion to grant ILR or 5 years’ humanitarian protection.
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The basis of the above-mentioned request was primarily owing to the applicant’s need for long-term care planning in circumstances when it was unlikely that he would have capacity to manage his immigration affairs. In addition, mention was made of the applicant having been unfairly denied the opportunity to apply for ILR because he was not granted humanitarian leave at an earlier stage. Enclosed were supporting letters from Dr Camden-Smith, a psychiatrist and from Mr Brownless, a lawyer who represented the applicant at his mental health tribunal.
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The respondent declined to vary the applicant’s leave as requested and it is this letter dated 1 April 2019, which is the subject of this challenge.
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The relevant parts of the Secretary of State’s decision dated 1 April 2019 were as follows;
“I have consulted a senior caseworker regarding your request and can confirm that we can only consider a grant of discretionary leave in line with the discretionary leave policy.
Your client was previously granted a period of 3 years Discresionary (sic) leave on 18 March 2011 and the Home Office would only grant a further 3 years Discresionary (sic) Leave in line with this policy.
We would not be able to grant ILR or 5 years HP due to his mental health.”
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The applicant sent a letter before claim on 14 June 2019 which challenged the decision not to grant him ILR. There does not appear to have been a response to that correspondence.
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The judicial review grounds were as follows:
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The respondent failed to take relevant matters into account;
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The respondent unlawfully fettered her discretion and/or failed to exercise it;
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the respondent failed to discharge her duty under the sections 20 and 29 EA to make reasonable adjustments to her decision-making process and/or breached section 149 of the PSED;
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The respondent’s decision breaches section 6 of the Human Rights Act 1998, Article 8 ECHR along with the UN Convention on the Rights of People with Disabilities (UNCRPD) and reached a conclusion which was not rationally open to her
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The above-mentioned grounds were undeveloped in the application, however there was a detailed account of the facts of the case.
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Permission was granted by Upper Tribunal Judge Owens in a decision sent on 29 August 2019, on all grounds.
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The respondent provided detailed grounds of defence, dated 23 October 2019, in which it was requested that all aspects of the claim be dismissed, and that the applicant meet the respondent’s costs of defending this challenge.
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The applicant’s skeleton argument was received on 20 December 2019. The grounds set out in the judicial review application continued to be relied upon but were accompanied by focused argument which can be summarised as follows.
Ground one
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It was argued that the respondent was obliged to take into consideration a range of factors and her failure to do so was an established error of public law; that the decision challenged was premised on the view that there can be no departure from the position that 3 years’ leave to remain was mandated and it was contended that the applicant had been caused a detriment and denied access to services, long term treatment and care planning. The absence of long- term certainty was said to lead to doubt and a lack of clarity regarding the applicant’s entitlement to services.
Ground two
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The argument here was that the respondent unlawfully fettered her discretion and that she failed to exercise discretion in light of all material factors. Reference was made to the respondent’s Discretionary Leave policy in respect of where a longer period of leave is considered appropriate as well as the arrangements concerning those originally granted DLR under the respondent’s policy in force before 9 July 2012.
Ground three
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The respondent failed to give effect to her duties to disabled migrants under the EA; paragraph 16 of Schedule 3 to the EA did not apply in this case because the decision in this case was not a variation decision and the...
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