Upper Tribunal (Immigration and asylum chamber), 2021-11-12, JR/05263/2019
| Jurisdiction | UK Non-devolved |
| Date | 12 November 2021 |
| Published date | 15 November 2021 |
| Hearing Date | 24 August 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/05263/2019 |
IN THE UPPER TRIBUNAL JR/5263/2019
IMMIGRATION AND ASYLUM CHAMBER
B E T W E E N:-
THE QUEEN
(on the application of
TEJESHWAR SINGH MAHAL)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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ORDER
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UPON hearing counsel for the applicant (Michael Biggs) and counsel for the respondent (Paul Corben) on 24 August 2021 in respect of the applicant’s claim for judicial review of the respondent’s decision by letter dated 12 September 2019 (by which his further submissions were rejected pursuant to paragraph 353 of the Immigration Rules).
IT IS ORDERED THAT:-
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The application for judicial review is allowed.
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The 12 September 2019 decision is quashed.
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The respondent is to pay the applicant’s costs of this application for judicial review, which are to be assessed on the standard basis if not agreed.
S igned: Helen Rimington
Upper Tribunal Judge Rimington Dated: 9th November 2021
Applicant’s solicitors:
Respondent’s solicitors:
Home Office Ref:
Decision(s) sent to above parties on: 12.11.2021
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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 question 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.
IAC-FH-CK-V1
IN THE UPPER TRIBUNAL
JUDGMENT GIVEN FOLLOWING HEARING
JR/5263/2019
Field House,
Breams Buildings
London
EC4A 1WR
24th August 2021
The QUEEN
(ON The application OF Mr Tejeshwar Singh Mahal)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE RIMINGTON
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Mr M Biggs, Counsel instructed by ATM Law Solicitors appeared on behalf of the Applicant.
Mr P Corben, Counsel instructed by the Government Legal Department appeared on behalf of the Respondent.
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
JUDGE RIMINGTON: The appellant challenges the decision of the Secretary of State dated 12th September 2019 (“the Decision”) by which his further human rights submissions advanced in an application dated 9th May 2019 were refused under paragraph 353 of the Immigration Rules as a fresh claim.
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The applicant’s grounds advanced the following:
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the respondent failed to consider the applicant’s argument that the previous decision dated 14th May 2018 (refusal of further leave to remain as a Tier 2 (General) Migrant) was procedurally unfair and unlawful because it was made without first giving the applicant notice of the revocation of the applicant’s sponsor’s licence. Following the Supreme Court’s decision to grant permission to appeal from the decision in Pathan & Anor v Secretary of State for the Home Department [2018] EWCA Civ 2103 the respondent failed to consider a central aspect of the applicant’s purported human rights claim.
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the 14th May 2018 decision was vitiated by procedural unfairness and was therefore unlawful and that factor was highly significant in the proportionality of requiring the applicant to leave the UK. On any rational view the applicant’s further human rights submissions carried a realistic prospect of success.
Immigration History
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The applicant entered the UK on 1st September 2009 as a Tier 4 Student with leave valid to 30th October 2013 and on application his leave was extended as a student to 24th August 2014. On 19th August 2014 he applied for leave to remain as a Tier 2 (General) Migrant with his sponsor, Flexistay, and leave was granted to 14th September 2017. On 24th August 2017 the applicant applied for further leave to remain as a Tier 2 (General) Migrant, again with Flexistay. On 27th April 2018 Flexistay’s sponsor licence was revoked. On 14th May 2018 the applicant’s application was refused. The applicant had a right to administrative review, which he exercised but the administrative review upheld the refusal on 17th June 2018. The applicant did not and has never challenged that points-based refusal by way of judicial review.
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On 3rd July 2018 the applicant made an application relying on his private life in the UK. This was refused on 30th January 2019 and certified as clearly unfounded under Section 94 of the Nationality, Immigration and Asylum Act 2002. The Secretary of State maintains the applicant had and still has a right to an out of country appeal against that decision but has not sought to exercise that right of appeal and nor has he challenged the certification by way of judicial review.
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On 9th February 2019 the applicant made a further human rights application and this was refused on 26th April 2019 and deemed not to amount to a fresh claim under paragraph 353 of the Immigration Rules. The applicant has not challenged that decision by way of judicial review.
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Finally, on 9th May 2019 the applicant made a further application for leave to remain on human rights grounds and this was refused on 12th September 2019 (“the Decision”) and again not deemed to amount to a fresh claim. It is this decision which is under challenge.
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Mr Biggs expanded upon his skeleton argument in his oral submissions, underlining that notice of the revocation of the employer’s licence on 27th April 2018 was only communicated to the applicant on 14th May 2018 in the decision refusing further leave to remain.
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Following the refusal of his 3rd July 2018 human rights application on 30th January 2019 and which was certified and a further refusal on human rights (private life) grounds on 9th February 2019, the applicant made further submissions on 9th May 2019 supported by a covering letter dated 10th June 2019 which identified the first basis of his human rights claim to be the wrongful refusal of his previous and historic Tier 2 application on 14th May 2018. It was pointed out in the further submissions that the 14th May 2018 decision was unlawful because it was procedurally unfair. It was also noted in the submissions that the Supreme Court had granted permission to appeal to the Court of Appeal’s decision in R (Pathan & Anor) v Secretary of State for the Home Department, indicating that it was arguable that this decision was wrong and would be overruled and that the decision made prior to the Supreme Court’s decision would be premature and a failure to consider the applicant’s case properly.
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Nonetheless, the Decision was made by the respondent prior to the Supreme Court decision, concluding that the fresh submissions, taken together with the evidence and argument previously considered, did not have a realistic prospect of success. The respondent effectively expressly refused to consider the applicant’s representations to the effect he had been prejudiced by the 14th May decision.
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The respondent explained in her Decision at paragraph 20:
“Regarding a claimed issue with your previous Tier 2 application it has been noted that this was refused on 14th May 2018 with an ADMIN Review (AR). AR had been completed on 17th June 2018 where the AR had maintained the decision. As your application has been submitted on the basis of your family and private life in the UK and human rights, this has not been considered [my underlining]. As stated above, it is open for you to make a Tier 2 application if you feel you meet the requirements.”
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The response to the pre-action Protocol letter stating the respondent had acted unlawfully by failing to consider the argument relating to the procedural unfairness responded that:
“Your client could have brought a challenge to the decision dated 14/05/2018 within the time remit of Civil Procedure Rules. The SSHD is satisfied that the decision dated 12/09/2019 is lawful therefore your claim is rebutted.
Permission to appeal in the case of Pathan was granted on 18th March 2019, however, case law in the Court of Appeal still stands. In the light of the above, the decision dated 12/09/2019 is fair as your client did not suffer unfairness in all considerations as confirmed, therefore this claim is rebutted.”
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An application for judicial review was issued on or around 11th October 2019 and permission was granted by Upper Tribunal Judge Kopieczek on 7th November, who observed that the Supreme Court had indeed granted permission to appeal in Pathan & Anor and further that whilst the respondent’s fresh claim decision
“does refer to the...
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