Upper Tribunal (Immigration and asylum chamber), 2021-06-03, JR/03246/2019 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 03 June 2021 |
| Published date | 04 June 2021 |
| Hearing Date | 03 June 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/03246/2019 & Ors. |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR/3246/2019 &JR/1043/2019 (‘V’) |
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In the matter of an application for Judicial Review |
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The Queen on the application of |
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(1) ANSAR WASEEM (2) GAYANI ARACHCHIGE (AND ONE OTHER) |
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Applicants |
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versus |
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Secretary of State for the Home Department |
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Respondent |
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ORDER |
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BEFORE The Hon. Mr Justice Lane, President and Upper Tribunal Judge Keith
HAVING considered all documents lodged and having heard Mr Z Jafferji and Mr A Rehman, instructed by Lawise Solicitors, for the first applicant; Ms S Naik QC and Ms Ella Gunn, instructed by Jein Solicitors, for the second applicant; and Mr R Harland, instructed by the Government Legal Department, for the respondent, at a hearing on 12th February; 30th March; and 3rd June 2021
IT IS ORDERED THAT:
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The application for judicial review is refused for the reasons in the attached judgment.
Costs
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With the agreement of the parties’ representatives, the applicants’ representatives shall provide to this Tribunal and the respondent, not later than 4pm on Friday, 4th June 2021, written submissions of no more than 2 A4 sides in length, on the issue of costs. The respondent’s representative’s may provide a reply in writing, provided that it is received not later than 4pm on Wednesday, 9th June 2021. The representatives agreed that this Tribunal should then resolve the issue of costs on the papers, without the need for a further hearing.
Reasons
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The parties were unable to reach agreement on an appropriate order. The parties’ representatives had been directed on 24th May 2021 to provide, by email, not later than 12 midday on 2nd June 2021, representations on the issues of costs; permission to appeal; and any other pertinent issue. In that context, the hearing today was only listed for only 30 minutes. No issue was raised beforehand about the time estimate of the hearing being insufficient. Without criticism of Mr Harland, no representations were provided by the deadline yesterday. At the hearing today, in resisting the usual order for costs, Ms Naik QC began to make extensive oral submissions and was concerned that this Tribunal needed to make a more detailed analysis of the history of the litigation. She was concerned about the time constraints of this hearing to consider the costs issue, given its complexity. She apologised for having misunderstood the earlier directions. Moreover, prior to, and in the middle of oral submissions, the applicants’ representatives sent multiple emails on the issue, with attachments, which I did not have the opportunity to read. In the circumstances, while the parties were content that the basis of the application for permission to appeal could be summarised as being a reiteration of the amended grounds of the application, and could be dealt with today, the issue of costs was said by the applicants’ Counsel to be more complex. They therefore asked to be permitted to make written submissions on the costs issue after this hearing, which could be resolved without a further hearing, on the papers.
Permission to appeal to the Court of Appeal
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As set out above, the applicants sought permission to appeal to the Court of Appeal, for the same reasons that they had applied for judicial review. We refuse permission to appeal to the Court of Appeal for the same reasons that we have refused the orders sought for judicial review and there is no arguable error of law in our decision.
Signed: J Keith
Upper Tribunal Judge Keith
Dated: 3rd June 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):
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).
Case No: JR/3246/2019 (‘V’)
JR/1043/2019 (‘V’)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
and via Skype for Business
3rd June 2021
Before:
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE KEITH
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Between:
THE QUEEN
on the application of
(1) ANSAR WASEEM
(2) GAYANI ARACHCHIGE (AND ONE OTHER)
Applicants
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr Z Jafferji and Mr A Rehman, instructed by Lawise Solicitors,
for the first applicant
Ms S Naik QC and Ms Ella Gunn, instructed by Jein Solicitors,
for the second applicant
Mr R Harland (instructed by the Government Legal Department) for the respondent
Hearing dates: 12th February and 30th March 2021
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J U D G M E N T
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A. Introduction
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We conducted the hearings from open court at Field House, while the parties’ representatives attended via Skype for Business. The Skype link was also open to members of the public to access. We monitored the quality of the communications between the parties and us and we were satisfied overall that the parties were able to participate effectively in the hearing.
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The applicants’ applications raised common issues relating to the respondent’s application of her long residence policy; her exercise of discretion for those applying for indefinite leave to remain, where they do not meet the long residence requirements of the Immigration Rules; the issue of proportionality, in the context of article 8 of the European Convention on Human Rights (‘ECHR’); and the respondent’s consideration of the applicants’ further submissions as fresh claims, for the purposes of paragraph 353 of the Immigration Rules.
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As a consequence of the respondent’s refusal to treat the applicants’ further submissions as fresh claims, no statutory right of appeal arose and the challenges to the respondent’s decisions came before us as applications for judicial review. At the core of the respondent’s decisions was the common circumstance that the applicants were all ‘open-ended’ overstayers, as described by the Court of Appeal in the case of Hoque & Ors v SSHD [2020] EWCA Civ 1357 (see [9]).
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The applicants accept that their ILR applications fell for refusal under the Immigration Rules, as now understood as a result of Hoque, but they contend that the respondent impermissibly failed to apply her own, wider policy in relation to long residence, which would otherwise result in them being granted some form of leave and so becoming ‘book-ended’ overstayers; failed to consider her residual discretion; and failed adequately to carry out a proportionality assessment for article 8 ECHR purposes. All parties accepted that it was for this Tribunal to determine the meaning of the respondent’s long residence policy.
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A synopsis of each of the applicants’ circumstances is set out below.
B. The applicants
JR/3246/2019
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AW is a citizen of Pakistan born on 5th May 1979. He arrived in the UK lawfully with permission to enter as a student on 19th April 2009, with leave to remain until 30th July 2012. Prior to expiry of that leave, he made an in-time application on 27th January 2012 for leave to remain as a tier 1 post-study migrant and was granted further leave on 10th May 2012 until 12th May 2014. On that date, he submitted a further in-time application, for further leave to remain as a tier 1 entrepreneur and his leave was granted until 24th June 2017. That was the last date on...
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