Upper Tribunal (Immigration and asylum chamber), 2020-09-24, JR/05128/2019
| Jurisdiction | UK Non-devolved |
| Date | 24 September 2020 |
| Published date | 23 October 2020 |
| Hearing Date | 20 August 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/05128/2019 |
JR/05128/2019
U TIJR6
JR/5128/2019
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of [J O]
Applicant
v
Secretary of State for the Home Department
Respondent
Before
Upper Tribunal Judge Pitt
Judgment
Having considered all documents lodged and having heard the parties' respective representatives, Mr P Turner, of Counsel, instructed by the Legal Resource Partnership, on behalf of the Applicant and Mr D Ruck-Keene, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 20 August 2020
Upper Tribunal Judge Pitt:
Introduction
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The applicant challenges a decision of the respondent of 5 July 2019 which was an Administrative Review upholding a decision dated 21 May 2019 which refused an application for indefinite leave to remain (ILR) as a Tier 2 (Minister of Religion) Migrant.
Factual Background
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The applicant is a citizen of Nigeria and was born on 3 May 1973. His wife, and their three minor children are dependents on the application.
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On 28 August 2012 the applicant's wife was granted a visa as Tier 4 (General) student valid until 30 January 2014 and the family came to the UK with the applicant and the children as dependents.
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On 29 January 2014 the applicant applied for further leave to remain as a Tier 2 (Minister of Religion) Migrant. He was granted leave in that category on 13 February 2014 until 16 February 2017 and the family were granted leave as his dependents.
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On 8 February 2017 the applicant applied for further leave as a Tier 2 (Minister of Religion) Migrant. That leave was granted until 18 February 2019.
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On 1 February 2019 the applicant applied for ILR as a Tier 2 (Minister of Religion) Migrant.
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The applicant's Tier 2 sponsor was City Chapel. On 12 April 2019 the respondent revoked City Chapel's sponsor's licence.
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On 21 May 2019 the respondent refused the applicant's ILR application with right to Administrative Review. The application was refused as City Chapel's licence had been revoked and there was no evidence to show that the organisation had made an application to renew their licence. The application was refused as the applicant did not meet the requirements of Paragraph 245HG(c)(i) of the Immigration Rules.
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On 7 June 2019 the applicant applied for Administrative Review on the basis that as all requirements were met at the date of application (1 February 2019) and/or by 13 February 2019 when he met the 5 years' continuous residence requirement, otherwise and would cause detriment to the applicant for a reason entirely outside his control, that is, the revocation of the sponsor's licence.
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On 5 July 2019 the respondent upheld the decision of 21 May 2019 maintaining that it was lawful where the applicant did not meet the Immigration Rules at the date of the decision. Further, there had been no unnecessary or undue delay in processing the ILR application.
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This application was lodged on 4 October 2019. Permission was refused on the papers on 2 December 2019. The application was renewed and permission to apply for judicial review was granted on 31 January 2020 after an oral hearing.
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The respondent lodged detailed grounds of defence on 22 June 2020. The applicant lodged a skeleton argument on 31 July 2020. The respondent lodged a skeleton argument on 7 August 2020. The application was listed for a substantive hearing on 20 August 2020. The applicant applied on 18 August 2020 to amend his grounds. That application was refused on 19 August 2020.
Legal and Policy Framework
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The paragraphs of the Immigration Rules in question here state (with my emphasis in bold):
245HG. Requirements for indefinite leave to remain as a Tier 2 (Minister of Religion) Migrant
To qualify for indefinite leave to remain as a Tier 2 (Minister of Religion) Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
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The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
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The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with
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The Sponsor that issued the Certificate of Sponsorship that led to the applicant's last grant of leave must:
(i) still hold a Tier 2 Sponsor licence in the relevant category, or have an application for a renewal of such a licence currently under consideration by the Home Office
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The respondent's "Tier 2 Policy Guidance" for applicants states:
"189. Where your application relies on a Certificate of Sponsorship that has been either withdrawn or cancelled, your application will be refused."
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The "Tier 2 and 5: Guidance for Sponsors" states (with my emphasis in bold):
"What happens to my sponsored migrants if my licence is revoked?
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If your licence is revoked, any COS you have assigned automatically become invalid. This means that any application for entry clearance to the UK or leave to remain in the UK made on the basis of the COS will automatically be refused.
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Where a migrant has already been granted entry clearance to the UK when we revoke your licence, if they have not yet travelled to the UK, their entry clearance will be cancelled under paragraph 30A (ii) of the Immigration Rules. If the migrant has travelled to the UK, they will be refused entry to the country under paragraph 321A(1) of the Immigration Rules.
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If your sponsor licence is suspended while we are considering an application for settlement, also called 'indefinite leave to remain' (ILR), from a Tier 2 or 5 migrant that you are sponsoring, we will not make the decision on their settlement application until the outcome of the suspension is decided. If the licence is revoked, we will then refuse the settlement application."
Discussion
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The core challenge here is that the respondent acted unlawfully in refusing the application on 21 May 2019 where it is undisputed that on 13 February 2019 the applicant could have met the Immigration Rules, his sponsor's licence only being revoked on 12 April 2019.
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It is well understood that the respondent acts lawfully in applying the law in force at the date of her decision and not the law pertaining at an earlier date, for example the date of an application. This principle was set down by the House of Lords in Odelola v SSHD [2009] UKHL 25. It has been approved consistently by the higher courts since then. In BB (Algeria) v SSHD [2016] EWCA Civ 25 at [32], for example:
"In Odelola the House of Lords clearly established the principle that, absent an express transitional provision which provides otherwise, immigration decisions are to be taken by the Secretary of State in accordance with the Immigration Rules in force at the time the decision is made."
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The Court of Appeal in BB (Algeria) went on in paragraphs 33 to 46 to set out equally clearly that as of the date of the decision, an applicant does not retain "any kind of vested, or other, right" arising from the fact that at some earlier point, including the date of the application, he may have met the Immigration Rules.
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Following this principle, the respondent acted lawfully in applying the law as it stood at the date of the decision on 21 May 2019.
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The applicant seeks to distinguish the principle set out in Odelola arguing that it only applies where there has been a change in the Immigration Rules after an application is made, the particular facts in Odelola. He maintains that the situation here was different as the Rules at the date of the application, during the period that the application was outstanding and at the date of the decision were the same. I was not taken to anything in Odelola that suggests that the principles set out therein were intended to be limited only to situations where the Immigration Rules changed after an application was made and before the respondent makes a decision and would not applicable here. Indeed, Odelola, and all of the case law that I was taken to that affirms it, is predicated on the date of the decision being the relevant date for the respondent to apply the current law to the applicant's circumstances. If that were not so, the arguments in that line of case law as to what iteration of the Immigration Rules should be applied at the date of the decision would not have arisen.
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The applicant maintains that the ordinary reading of paragraph 245HG is that ILR should have been granted here as by 13 February 2019 the...
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