Upper Tribunal (Immigration and asylum chamber), 2022-01-13, JR/00941/2019
| Jurisdiction | UK Non-devolved |
| Date | 13 January 2022 |
| Published date | 21 January 2022 |
| Hearing Date | 01 September 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/00941/2019 |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR/941/2019 |
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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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SAMIA AKTER |
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Applicant |
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and |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
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Respondent |
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ORDER |
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BEFORE Upper Tribunal Judge O’Callaghan
UPON hearing Ms. S Naik QC and Mr. R Sharma, Counsel, instructed by St Martin Solicitors, for the Applicant and Mr. Z Malik QC, Counsel, instructed by the Government Legal Department, for the Respondent at a hearing held at Field House on 1 September 2021
HAVING considered all documents lodged including the written submissions of the Applicant, dated 6 September 2021 and 6 January 2022, and the respondent, dated 17 December 2021
UPON the parties having been unable to agree an order
AND UPON the Tribunal adjourning the final hearing disposing of immigration judicial review proceedings to a future date: rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008
IT IS HEREBY ORDERED THAT:
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The application for judicial review is refused.
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The handing down of the decision upon an application for permission to appeal at a date to be fixed following the filing of written submissions by the parties will constitute the final hearing disposing of immigration judicial review proceedings in this matter: rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
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The issue of costs will be considered following the filing of written submissions by the parties.
IT IS DIRECTED THAT:
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The applicant is to file written submissions as to (1) permission to appeal to the Court of Appeal and (2) costs by 4pm on Friday 14 January 2022.
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The respondent is to file a written response by 4pm on Monday 17 January 2022.
Reasons
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Consequent to the truncated time period in which the applicant was permitted to consider the draft judgment and secure appropriate advice it is considered just that she be provided further time to file written submissions as to an onward appeal and the issue of costs.
Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan
Dated: 13 January 2022
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): 13 January 2022
Solicitors:
Ref No.
Home Office Ref:
Case No: JR/941/2019
In the Upper Tribunal
(Immigration and Asylum Chamber)
Field House
Breams Buildings
London, EC4A 1WR
13 January 2022
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
___________________________________________
Between
REGINA
On the application of
SAMIA AKTER
Applicant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
_________________________________________________
Sonali Naik QC and Rajiv Sharma (instructed by St Martin Solicitors) for the Applicant
Zane Malik QC (instructed by the Government Legal Department) for the Respondent
Hearing date: 1 September 2021
Further Written Submissions: (Applicant) 6 September 2021 and 6 January 2022; (Respondent) 17 December 2021
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JUDGMENT
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Judge O’Callaghan:
This judgment is in five main parts, as follows:
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Overview Paras. 1 - 10
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Legislative Framework Paras. 11 - 30
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The Facts Paras. 31 - 61
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Conclusions Paras. 62 - 139
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Further Steps Para. 140
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Overview
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This claim has a lengthy procedural history and was recently remitted to this Tribunal from the Court of Appeal: R (Akter) v. Secretary of State for the Home Department [2021] EWCA Civ 704.
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At the outset I wish to take the opportunity to thank counsel for the high quality of their written and oral submissions.
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The applicant’s present solicitors and counsel were instructed following the refusal by UTJ Owens to grant permission to apply for judicial review following an oral hearing held on 9 August 2019. They were not responsible for the poor drafting of certain documents referenced below.
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The case turns on technical points of law and it is necessary to summarise the factual and procedural background in some detail, particularly regarding events following an application for leave to remain in this country made by the applicant in 2014.
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The applicant seeks a quashing order in respect of a decision of the respondent dated 19 November 2018 (‘the November 2018 decision’) by which her application for indefinite leave to remain on long residence grounds under paragraph 276B of the Immigration Rules (‘the Rules’) was refused.
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By her November 2018 decision the respondent refused the application observing, inter alia:
‘Consideration has been given to your application and it is noted from your immigration history that you had lawful leave following your arrival in the United Kingdom on 7 March 2008 until 31 January 2013.
You did seek to vary your leave on 31 January 2013. However, this application was refused with a right of appeal, following an unsuccessful appeal your appeal rights were exhausted on 13 August 2014. It is noted you made a further attempt to vary your leave on 9 September 2014 and 24 February 2015. However, these applications were submitted out of time. It must be pointed out that any time spent following the submission of an out of time application awaiting for consideration of the application is not considered lawful even if that application is subsequently granted. Therefore, you were without valid leave from 13 August 2014 when your appeal rights were exhausted, until your next grant of leave to remain on 9 June 2016, a period of 665 days. As such your period of continuous lawful residence is considered to have been broken at this point.
As you have remained without any leave to enter or remain between 13 August 2014 and 9 June 2016 you cannot demonstrate 10 years continuous lawful residence in the UK and cannot meet the requirements of the Immigration Rules with reference to Paragraph 276B(i)(a).’
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The respondent accepts that the applicant applied for leave to remain on 9 September 2014 (‘the September 2014 application’), 27 days after she became appeal rights exhausted on 13 August 2014. It is further accepted this was a valid application in proper form and brought within the Rules. At this time, the applicant was an overstayer. The respondent refused the application by a decision letter dated 24 November 2014 (‘the November 2014 decision’).
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At the date of the application, the relevant regime then existing under the Immigration Rules, introduced by Statement of Changes HC 194, was that while applications for further leave to remain for many Rules-based applications were expected to be made in time, any period of overstaying for 28 days or less was not a ground for refusal as far as those applications are concerned. The Rules therefore permitted a disregard in identified Rules-based applications. However, applicants remained overstayers, present in this country in breach of immigration laws. The 28-day period was originally brought in so that applicants who had made an innocent mistake in the preparation of their in-time applications for further leave were not penalised by being treated as unlawfully present in this country.
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The disregard rules relevant to the respondent’s consideration of the applicant’s November 2014 application were:
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Paragraph E-LTRP.2.2 of Appendix FM in respect of limited leave to remain as a partner
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Paragraph E-LTRPT.3.2 of Appendix FM in respect of limited leave to remain as a parent
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The applicant contends:
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The respondent’s November 2014 decision was withdrawn, or in any event the September 2014 application was not determined until 11 May 2015.
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Upon successfully exercising her right of appeal in relation to the May 2015 decision, the September 2014 application was not lawfully determined until the respondent granted her leave to remain on 9 June 2016.
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She has established 10 years’ lawful continuous residence in this country for the purpose of paragraph 276B of the Rules.
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Legislative Framework
Statute
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If an application has been made to vary leave before the expiry of extant leave, section 3C of the Immigration Act 1971 (‘the 1971 Act’) automatically extends an applicant’s leave by operation of law, while they are waiting for their in-time application for leave to remain, at the time when...
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