Petition By Zaffar Mirza For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2016] CSOH 73 |
| Year | 2016 |
| Published date | 27 May 2016 |
| Date | 27 May 2016 |
| Court | Court of Session |
| Docket Number | P1041/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 73
P1041/15
OPINION OF LORD TURNBULL
In the Petition
ZAFFAR MIRZA
Petitioner;
for
Judicial Review
Petitioner: Irvine, Advocate; McGill & Co. Solicitors
Respondent: Carmichael QC; Office of the Solicitor to the Advocate General
27 May 2016
[1] The petitioner is a 56 year old Pakistani citizen who seeks judicial review of a decision by the Secretary of State to refuse to grant him what is known as a “No Time Limit” endorsement.
Background
[2] The petitioner’s personal and family history is at the heart of this case. On his account of matters it can be summarised as follows. He was born on 20 June 1959 and came to the United Kingdom with his family in 1967. He initially moved to London and has lived in the United Kingdom ever since. As a child he was taken into local authority care and spent short periods of time in detention, both as a juvenile and as a young adult. Aged around 17 or so he moved to Glasgow and aged 18 he married Rukhsana Begum, a British citizen, with whom he went on to have five children, one of whom died in 2006. He claims to have lived with his wife and family in Glasgow, Stirling and latterly Edinburgh. The title to the family house in Edinburgh is said to be in his wife’s name. He claims to have worked in various different Indian restaurants over a number of years and only to have left the United Kingdom on two occasions, once in 1981 for around six weeks and again in 1995 for around twelve days.
[3] The petitioner claims that the other members of his family obtained British citizenship. This did not seem to be doubted by the respondent. Having been granted indefinite leave to remain he claims that he saw no need to do so. At some point after 1 January 1973 his Pakistani passport was endorsed with those words.
[4] Certain more recent circumstances are clearly established. Around January 2012, having reported the loss of his passport to the police, he was issued with a replacement from the Pakistani embassy. His requests to the Home Office to issue a replacement stamp vouching indefinite leave to remain were refused. By letter dated 10 October 2013 from Capita Business Services (acting on behalf of the Home Office), he was informed that he was liable to be removed from the United Kingdom. He then consulted his solicitors who ingathered various forms of support for his application and forwarded these to the Home Office.
[5] By the time of the hearing before me the respondent was prepared to accept certain aspects of the petitioner’s history, although her position has been evolving over time. In particular, the respondent now accepts that the petitioner was settled in the United Kingdom at the entry into force of the Immigration Act 1971, with the consequence that he is to be treated as having acquired indefinite leave to remain from 1 January 1973. The remaining concern on the part of the respondent relates to the extent to which the petitioner has been living in the United Kingdom since 1991.
[6] As a result of the Immigration (Biometric Registration) Regulations 2008, a person making an application to replace a passport stamp indicating indefinite leave to remain must apply for the issue of a biometric immigration document. The endorsement which would be attached to that document is now termed “No Time Limit”.
[7] The reason for the respondent’s refusal to provide the petitioner with such an endorsement is clear from the history of documentation stretching back to 10 December 2012. On that date the petitioner was written to informing him that the UK Border Agency was unable to confirm that he had ever been granted indefinite leave to remain and this was given as the explanation for refusing his application. He was, however, informed that if he was able to provide evidence that he had been continuously resident in the United Kingdom from 1972 the decision might be reconsidered.
[8] After further discussion, the petitioner’s solicitors wrote to the UK Border Agency on 26 February 2014 enclosing documents and other information and making a further request on his behalf. There then followed a series of letters from the Home Office in which various stipulated documents were requested, and then, in letters dated 8 October 2014, 24 February 2015 and 28 July 2015, the Secretary of State’s decision was explained.
[9] In those letters the petitioner was informed that since he had been unable to demonstrate that he had been continuously resident in the United Kingdom, the Secretary of State was not satisfied that he was entitled to an endorsement. In the last of those letters it was conceded that an error had been made in requiring any vouching of residence prior to 1988 but it was reiterated that there remained considerable gaps in the periods in which the petitioner could demonstrate continued residency:
“which is required to be satisfied prior to the issuing of the NTL stamp”.
[10] This correspondence culminated in a further letter dated 1 September 2015, in which the petitioner was informed that he had no lawful basis to remain in the United Kingdom, that he should leave as soon as possible, that he may be prosecuted if he did not do so and that he may be removed from the country.
The petitioner’s immigration status
[11] The legislative provisions which govern the status of persons with the petitioner’s history began with the introduction of the Immigration Act 1971 and have been marked by complexity and regular change thereafter. There was, however, no dispute as to the present position. The petitioner was settled in the United Kingdom prior to the introduction of the 1971 Act and, by virtue of section 1(2), fell to be treated as having acquired indefinite leave to remain as from the commencement of that Act.
[12] The circumstances in which the petitioner’s indefinite leave to remain will be lost are now governed by the Immigration (Leave to Enter and Remain) Order 2000. Article 13, paragraphs (1) and (2), provide that for the purposes of the Order “leave” means leave to remain in the United Kingdom and that leave which is in force does not lapse on a person going to a country outside the common travel area. For the purposes of this case the important provision is paragraph (4), which provides as follows:
(4) Leave which does not lapse under paragraph (2) shall remain in force either indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited), but –
(a) where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse;”
[13] It was therefore accepted that unless the petitioner’s leave to remain had lapsed by virtue of absence from the United Kingdom for a continuous period in excess of two years, he would be entitled to the endorsement sought.
The petitioner’s application
[14] The petitioner’s account is that all of his family utility bills and the like have always been in his wife’s name. He does not have records from any of the places in which he worked and has a poor memory. He did though provide information of various different types in support of his application. He produced a brief affidavit setting out his family history and deponing that he had only ever left the United Kingdom for two short family related trips to Pakistan. He produced his marriage certificate and the birth certificates of his children. He produced the death certificate of his daughter vouching that she died in Edinburgh in 2006 and that he was the informant. He produced a letter from the owner of a well-known Edinburgh restaurant vouching that he had been employed by him, in different establishments, between 1979 and 1982, and again between 1986 and 1991. He produced letters from Edinburgh City Council from 2001 which suggested that he worked in an Edinburgh restaurant at that time. He produced a letter from an accountancy services firm, quoting his National Insurance Number, which vouched that he was employed in another restaurant between October 2010 and January 2012. He produced a letter from Lothian and Borders Police vouching the reported loss of his passport in January 2012. He produced letters from family and friends vouching that he lived in Edinburgh and that he had lived in the United Kingdom for many years. He produced a letter from a firm of solicitors who had represented him in 2006 in relation to a driving offence committed in 2005.
[15] In later correspondence the petitioner’s solicitors forwarded documentation which they had obtained dating back to the 1960s and 1970s concerning his schooling, social work care and juvenile court proceedings. The petitioner subsequently produced a more detailed affidavit for consideration by the respondent.
[16] No material has been identified by the respondent to suggest that the petitioner has ever left the United Kingdom since his arrival in 1967.
Petitioner’s submissions
[17] The first submission for the petitioner was based on the decision in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208. Since there was no provision in the Immigration Rules or in the Immigration Act 1971 for a No Time Limit endorsement, then the criteria which determined whether an endorsement would or would not be granted were to be found in the application form which was specified for use, in the guidance for applicants and in the policy guidance which had been promulgated by the Secretary of State.
[18] It was submitted that the criteria within these documents were to be seen as being in the nature of rules to be followed in the administration of the Immigration 1971 Act in regulating the control of entry into and stay in the United Kingdom of persons required by that Act to have leave to enter. In Alvi the Supreme Court held that everything which was in the nature of such a...
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