European Court of Human Rights

FOURTH SECTION

Application no. 17489/12
Mahmooda Khanam CHAUDHRY
against the United Kingdom
lodged on 9 March 2012

STATEMENT OF FACTS

 

The applicant, Ms Mahmooda Khanam Chaudhry, was born in 1941. She has dual Pakistani-United States nationality. She lives in Lahore. She is represented before the Court by her son, Dr Muhammad Atif Manzoor, who lives in Luton in the United Kingdom.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 23 June 2011, the applicant was given leave to enter the United Kingdom as a visitor until 23 December 2011. In August 2011, the applicant applied to the United Kingdom Border Agency (UKBA) for indefinite leave to remain as the dependant parent of her son. In her application she stated that, although she had four sons and a daughter living in Pakistan, three of them were disabled and the other had three children: their accommodation and income were not such that they could support her.

The application was refused by UKBA on 11 October 2011. The decision letter noted that, on her application form, the applicant had stated that she had children in Pakistan. In view of this, it was not believed that she had established that she had no close relatives in Pakistan to whom she could turn for support. The letter further noted that, since the decision did not mean she had to leave the United Kingdom, there would be no breach of Article 8 of the Convention. The formal Notice of Decision which accompanied this letter stated that the applicant was not entitled to appeal against the decision, as section 82 of the Nationality Immigration and Asylum Act 2002 did not provide a right of appeal where an applicant still had leave to enter or remain in the United Kingdom.

The notice, however, gave a name and date of birth which were entirely difference from those of the applicant (it referred to a man born in 1979). The applicant therefore wrote to UKBA pointing out the error and advising them that, for the reasons she had given in her original application, her family in Pakistan could not support her.

On 28 November 2011, UKBA replied apologising for the error and enclosed a revised copy of the Notice of Decision. The decision itself was not reconsidered.

The applicant left the United Kingdom before her leave to remain as a visitor expired.

B.  Relevant domestic law and practice

Section 82 of the Nationality Immigration and Asylum Act 2002, where relevant provides:

“Right of appeal: general

(1)  Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2)  In this Part “immigration decision” means-

...

(d)  refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain...”

By converse implication, the effect of sub-section 2(d) is that, if a person’s application for variation of their leave to remain is refused, but they still have leave to remain in the United Kingdom, the decision is not one which may be appealed.

COMPLAINTS

The applicant complains of a violation of Article 8 of the Convention in that her application to live with her son in the United Kingdom was refused on incorrect grounds (she had clearly stated in her application that her family in Pakistan could not support her).

She also complains of a violation of Article 13 read in conjunction with Article 8 of the Convention, because there was no right of appeal against UKBA’s decision.

Finally, relying on Article 14, she complains that she was discriminated against because she was not a national of the European Union. Such nationals enjoyed the right of settlement with their sons in another State.

QUESTION TO THE PARTIES

Has there been a violation of Article 13 read in conjunction with Article 8 of the Convention? Why does section 82(2(d) of the Nationality Immigration and Asylum Act 2002 remove the right of appeal altogether for someone who still has limited leave to remain in the United Kingdom when it would appear that the same ends could be achieved by making such an appeal non-suspensive?