Upper Tribunal (Immigration and asylum chamber), 2021-02-08, JR/00177/2020
| Jurisdiction | UK Non-devolved |
| Date | 08 February 2021 |
| Published date | 04 March 2021 |
| Hearing Date | 12 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/00177/2020 |
|
|
In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR/177/2020 |
|
|
||
|
In the matter of an application for Judicial Review |
||
|
|
||
|
|
The Queen on the application of |
|
|
|
Noor Sultan Siddiqui |
|
|
|
|
Applicant |
|
|
versus |
|
|
|
|
|
|
|
Entry Clearance Officer |
|
|
|
|
Respondent |
|
|
||
|
ORDER |
||
|
|
|
|
BEFORE Upper Tribunal Judge Blum
HAVING considered all documents lodged and having heard Mr M Biggs of counsel, instructed by My Legal Solicitors, for the applicant and Mr Z Malik of counsel, instructed by GLD, for the respondent at a hearing on 12 October 2020
IT IS ORDERED THAT:
-
The application for judicial review is granted in limited part for the reasons in the attached judgment.
-
The respondent’s reliance on paragraph 320(7A) of the immigration rules is unlawful because the conclusion that the appellant was dishonest was arrived at in a procedurally unfair manner and because, even though the respondent was “not clear” as to the reasons for the applicant’s answers in his interview, she concluded that he had been dishonest in circumstances indicating she only suspected him of dishonesty, contrary to Balajigari [2019] EWCA Civ 673 (at [42] and [129]).
-
The respondent’s assessment of whether Sufi Naat singing constitutes the performance of religious duties, by reference to paragraph 111(d) of Appendix A of the immigration rules, is unlawful as she failed to take the previous grant of entry clearance to the applicant into consideration in her assessment and because she failed to give any explanation, in circumstances where one was called for, for treating this aspect of the two applications differently.
-
The respondent was lawfully entitled to conclude that the applicant did not genuinely intend to undertake his role recorded by the Certificate of Sponsorship Checking Service, with reference to paragraph 245ZO(i). This finding was not infected by any procedural unfairness and is separate from and independent of the unlawful elements of the decision identified above. For these reasons I decline to quash the decision.
-
Having considered the written submissions made by Mr Malik and Mr Biggs on the issue of costs, both received on 2 February 2021, and the further oral submissions from Mr Biggs on 8 February 2021, I consider that both parties have been partially successful in the judicial review challenge and in these circumstances, and applying the authorities considered in M v Mayor and Burgesses of the London Borough of Croydon [2012] EWCA Civ 595 and the principles enunciated in that authority and Bhata & Ors v SSHD [2011] EWCA Civ 895 and R (Munyua) v SSHD (Parties responsibility to agree costs) [2017] UKUT 78 (IAC), I consider it appropriate to make no order as to costs.
-
Permission to appeal is refused because the Tribunal did not arguably err in law in concluding that the applicant had a procedurally fair opportunity to address the respondent’s concerns in respect of the applicant’s intentions, despite finding that there had been procedural unfairness in respect of the respondent’s reliance on paragraph 320(7A), or in its decision not to quash the challenged decision. The respondent’s assessment of the applicant’s intentions under 245ZO(i) was separate from and independent of the unlawful elements of the decision. Given the absence of any probative evidence relating to the nature of Sufi Naat singing, the Tribunal did not arguably err in law in concluding that the respondent’s assessment was one rationally open to her, subject to the unlawful elements of her decision summarised at (3) above.
Signed: D.Blum
Upper Tribunal Judge Blum
Dated: 8 February 2021
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 08/02/2021
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
UTIJR6
JR/177/2020
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of Noor Sultan Siddiqui
Applicant
v
Entry Clearance Officer
Respondent
Upper Tribunal Judge Blum
Application for judicial review: substantive decision
This decision follows a remote hearing in respect of which there has not objection by the parties. The form of remote hearing was by video (V), the platform was Skype for Business. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
Having considered all documents lodged and having heard the parties’ respective representatives, Mr M Biggs of Counsel, instructed by My Legal Solicitors, on behalf of the applicant and Mr Z Malik, of Counsel, instructed by the Government Legal Department, on behalf of the respondent, at a remote hearing at Field House, London on 12 October 2020.
Decision: the application for judicial review is granted in limited part
Background
-
The applicant, a male national of Pakistan born on 29 October 1981, challenges the respondent’s decision of 22 October 2019 (“the Decision”) refusing him entry clearance as a Tier 5 (Religious Worker) Migrant, a category within the Points Based System (PBS) part of the immigration rules.
-
On 6 October 2016 the applicant applied for entry clearance as a Tier 5 (Religious Worker) Migrant to work as a Sufi Naat singer employed by the International Naat Association, based in Manchester. The nature of Sufi Naat singing is a matter in dispute but it can generally be described as religious singing, and this was a term used by the applicant in his application. Entry clearance was granted on 19 October 2016, valid until 14 November 2018. The applicant entered the UK pursuant to this entry clearance and returned to Pakistan on 23 February 2017. On 23 May 2018 the respondent curtailed the grant of leave to enter so as to expire on 8 July 2018. The applicant’s leave was curtailed because he ceased to be employed by the International Naat Association.
-
On 7 November 2018 the applicant applied for entry clearance as a Tier 5 (Religious Worker) Migrant. He was interviewed on 5 December 2018 and the application was refused on 13 December 2018. The basis of the refusal included a finding that the applicant denied having a Facebook page in his December 2018 interview when it was believed he did have one. In his interview the applicant also stated that he never attempted to get married in the UK, but this was said to be inconsistent with chat logs seen on the relevant Facebook account (a public link was provided in respect of the relevant messages found on a Facebook page). In his interview the applicant was also asked whether he had ever declared employment in any other field, to which he said “no, I haven’t.” In a previous visit visa application made in 2016, which had been refused, the applicant declared his profession as “Project Development Manager”. The respondent considered that the applicant had made misrepresentations and the...
To continue reading
Request your trial