Vladimir Granovski (and 3 Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HHJ Coe |
| Judgment Date | 08 June 2015 |
| Neutral Citation | [2015] EWHC 1478 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7842/2013 |
| Date | 08 June 2015 |
[2015] EWHC 1478 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Coe QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/7842/2013
Ms A Weston (instructed by Kingsley Napley) for the Claimants
Mr W Hansen (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 5 th February 2015
HHJ Coe QC:
History and background
The Claimant is a national of Ukraine who was granted leave to enter the United Kingdom via the Highly Skilled Migrant Programme ("HSMP") on 20th April 2005. The three additional Claimants are his wife, Svitlana Granovska, and his two children Maria, born 17th May 2002 and Gregory, born 9th December 2006. Both children were born in the United Kingdom, although Maria was born when the family were here temporarily.
The Claimant is a political analyst/media consultant and director of Granovski and Associates Ltd. His business activities involve extensive travel outside the UK. There is no evidence to suggest that this has not always been the pattern of his work and at paragraph 6 of his statement dated 21st January 2015 he says that his business requires him to travel regularly within Europe and particularly to Germany, Austria and Ukraine. The trips are short in duration and he returns to his home and family in the UK following each trip. His clients expect his personal attendance at face-to-face meetings. The general pattern is for the Claimant to spend weeks or so at a time in Ukraine. There has been a longer period of absence when he was undergoing medical treatment. Almost all of his trips abroad are directly connected with his business.
The Claimant and his family live in the UK in their privately owned home. His children are at private schools here. He (now) files tax returns in the UK and pays tax in the UK. His daughter has lived here almost all her life and his son has always lived here. The Claimant has no home elsewhere.
Following the approval letter in respect of the acceptance onto the HSMP in February 2005 the family moved here and on 11th April 2006 was granted further leave to remain until 20th April 2010. The HSMP ended in March 2008 and the Tier 1 (General) Migrant System was introduced. On 20th April 2010 the Claimant and his family had their leave to remain extended until 20th April 2013. In accordance with the provisions of the HSMP at the time that the Claimant entered the scheme he applied for indefinite leave to remain ("ILR") on 14th January 2013. That application was refused on 22nd March 2013. A "Supplementary Reasons for Refusal" letter was issued by the Defendant on 20 th December 2013 and by this claim the Claimant challenges that refusal. The full chronology is set out as an attachment to the Claimant's skeleton argument and I do not intend to repeat it here. The Claim Form was lodged on 21st June 2013 and following a period of stay permission to bring these judicial review proceedings was granted on 26th March 2014.
The Reasons for Refusal letter dated 22 nd March 2013 sets out the Defendant's view that the Claimant's application must be considered under Paragraph 245 CD of the Immigration Rules because the Claimant was a Tier 1 (General) Migrant and that under Appendix S the applicant must have a "continuous period of lawful leave" in the UK. The Defendant notes that during the four-year qualifying period from 14th January 2009 until 13th January 2013 the Claimant spent a total of 1,045 days outside the United Kingdom and that the Defendant considers that these absences served to break the Claimant's period of "continuous residence". Guidance which came into effect on 13th December 2012 provides that the permissible period of absence was increased to a maximum 180 days per calendar year and the Claimant has spent in excess of 180 days outside the United Kingdom during each of the calendar years in question.
The Defendant concedes that the wording of the Rules (135G) does not specifically refer to "residence" as such but the Defendant considers that the plain meaning and intention of the rule is for continuous residence where it states that "the applicant must have a continuous period of four years' lawful leave in the UK".
The Defendant's letter states that given that the Claimant had "far exceeded the permitted number of absences from the United Kingdom it is not considered that it would be appropriate to exercise discretion given your circumstances. Nor is it considered that the reasons you have given for your excessive absences from the United Kingdom…are sufficient to warrant discretion being exercised in your favour".
The Defendant states in the letter that no consideration had been given to the Claimant's rights under Paragraph EX.1 of Appendix FM because the Claimant had not made a specified application paying the appropriate fee.
The penultimate paragraph of the letter reads "Having considered all of your circumstances as a whole it is not accepted that there are any factors of a sufficiently compelling or compassionate nature to warrant granting you any period of leave to remain in the United Kingdom exceptionally outside the Immigration Rules, particularly given that you continue to have valid leave to remain in the United Kingdom."
In the Supplementary Reasons for Refusal letter dated 20th December 2013 the Defendant refers to the fact that following the refusal of the Claimant's application for indefinite leave to remain a decision was taken on 17th April 2013 to grant a further period of leave to remain as a Tier 1 (General) Migrant until 20th April 2016. I note that that decision was taken following the refusal of the application for indefinite leave and following the Claimant's further application for limited leave and was made three days before expiry of the Claimant's previous grant of leave to remain.
The letter reiterates that it is the Defendant's view that the plain meaning and intention of paragraph 245 CD (e) is that the relevant qualifying period must be spent resident in the United Kingdom. Reference is again made to Appendix S of the Immigration Rules. The Defendant repeats that one of the requirements of paragraph 135G (which was the rule applicable to the Claimant when he entered the HSMP) was that the most recent grant of leave to remain must have been as a highly skilled migrant whereas the Claimant's most recent grant of leave to remain was as a Tier 1 (General) Migrant. The Defendant has applied the rules relevant to a Tier 1 (General) Migrant, therefore, namely paragraph 245 CD.
The Defendant contends that there is no disadvantage to the Claimant because following closure of the HSMP in March 2008, the requirements of those rules were encapsulated within Paragraph 245 CD.
It is the Claimant's case that the Defendant's decision is wrong because he does meet and has met all of the requirements of the relevant rule for settlement. Further and alternatively it is submitted that the Defendant had in any event a discretion to grant settlement and that discretion has been unfairly exercised. Briefly, the Claimant says that his application for indefinite leave to remain should have been dealt with by reference to the Immigration Rules in force at the date of the Claimant's entry to the HSMP. He says that the rules then in force did not refer to any need to demonstrate "continuous residence" but only required four years' leave to remain including a period of leave under the HSMP. He says that even if a residence test could be legitimately imposed physical presence would not be determinative of such a test. The Claimant says that the guidance at the date of his entry into the HSMP indicated that absence from the UK for reasons related to business or employment were to be disregarded and the Defendant has failed to apply relevant policy. He contends that the Defendant had unlawfully imposed a rigid and restrictive set of criteria. He further says that the Defendant has acted unlawfully, unfairly and irrationally in concluding that no different outcome should pertain.
There are three limbs to the Claimant's claim.
The First Limb
Paragraph 34 (i), (ii) and (iii) of the Claimant's skeleton argument sets out the first limb, namely, that he is entitled to indefinite leave to remain under the rules which were current at the time that he entered the HSMP and that properly construed those rules do not contain any requirement of continuous residence. He submits that the Defendant's power is fettered by two things: firstly, that she must not impose any more restrictive conditions than were in existence under the rules at the date of the Claimant's entry onto the scheme; and, secondly, the Defendant has no general power outside the immigration rules to impose any more restrictive conditions.
The Claimant refers me to the two HSMP Forum cases ( HSMP Forum Limited v SSHD [2008] EWHC 664 (Admin) ("HSMP 1) and HSMP Forum UK Limited v SHD [2009] EWHC 711 (Admin) ("HSMP 2")). I am also referred to the authorities of Alvi v SSHD [2004) UKSC 33 and Munir v SSHD [2012] UKSC 32.
In looking at the two HSMP cases the Claimant submits that I should consider them "through the prism" of the decisions in Alvi and Munir. The HSMP cases highlight features of the scheme, including that it was a scheme intended to encourage people to settle in the UK, that those accepted onto the scheme had a sense of invitation and that the scheme itself was intended to encourage settlement...
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