England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2004] EWCA Civ 867

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		Neutral Citation Number: [2004] EWCA Civ 867
		C4/04/0424

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE SULLIVAN)

Royal Courts of Justice
Strand
London, WC2A 2LL

20 May 2004

B e f o r e :

LORD JUSTICE KAY
____________________

	T H E Q U E E N (ON THE APPLICATION OF ISLAM SHAHID)	Claimant/Applicant
	-v-
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant/Respondent

____________________

(Computer-Aided Transcript of the Palantype Notes of
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____________________

The Applicant appeared in person.
The Respondent did not appear and was not represented.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE KAY: This is an application for permission to appeal against a decision of Mr Justice Sullivan not to grant permission to apply for judicial review at the respondent's refusal to grant the applicant indefinite leave to remain in the United Kingdom.

The applicant is a citizen of Pakistan. He entered the United Kingdom in 1993 on a single visit visa to study engineering. On 14 February 1994 an application for asylum was made on his behalf, which was refused on 19 February 1996. The applicant appealed against this decision and a hearing date was set for the appeal. Due to administrative errors on the part of the Home Office, and the apparent ineptitude of his solicitors, the applicant was never informed of the hearing date and the appeal was dismissed on 30 March 1998 having been considered to have been abandoned.

On 10 May 2001 the applicant wrote to the Home Office requesting exceptional leave to remain. This was refused and the applicant was given removal directions to Pakistan. He appealed to the adjudicator on 24 September 2001 on Human Rights Act grounds, citing articles 2, 3, 5, 6 and 8 of the European Convention on Human Rights. On 25 April 2003 the adjudicator dismissed the article 2, 3, 5 and 6 grounds but allowed the appeal on Article 8 grounds. He found that the applicant, through no fault of his own, had been allowed to stay in the United Kingdom for considerably longer than would normally be the case (nearly 10 years) and that during that period he had established a well defined and deep-rooted family life even though he was a single person. He stressed that this was a highly unusual case and it that would be wholly unjust to remove the applicant on immigration control grounds at this stage in his life.

Following the adjudicator's determination, the respondent granted the applicant discretionary leave to remain until 11 August 2006, apparently pursuant to a policy whereby indefinite leave to remain is only granted to those granted asylum following their recognition as refugees, whereas those allowed to remain on human rights grounds are granted discretionary leave. The applicant was informed of this by what appears to be a standard letter dated 11 August 2003, which contained a clause stating that leave to remain may be revoked if the conditions in the applicant's country of origin changed significantly such that return would become impossible.

The applicant's solicitors wrote to the respondent on 19 September 2003 arguing that it was the adjudicator's clear intention that the applicant be granted indefinite leave to remain and asking the respondent to reconsider its decision. The respondent refused to do so. On 6 November 2003 proceedings were issued in the Administrative Court for judicial review of that refusal.

The learned judge in the Administrative Court commented that, given that the adjudicator based his decision to allow the appeal on the fact that the applicant had a well established family life in this country after having been here for 10 years, it was "somewhat odd simply to give him three years discretionary leave to remain". However, he held that the respondent's decision was not so unreasonable as to render it unlawful and, therefore, he could not interfere with it. Moreover, he concluded that the applicant's article 8 rights were sufficiently protected by the fact that, under the policy, he was entitled to apply for an extension of time and had a right to appeal if the respondent were to refuse such an extension. The learned judge also noted that after six years of discretionary leave the applicant would be able to apply for indefinite leave to remain.

In relation to the reference to changing conditions in the letter granting discretionary leave to remain, the judge made it clear that this was of no application to the applicant's case. He said that it was unfortunate that it had been included in the letter. In those circumstances, the judge went on and refused permission to apply for judicial review.

The grounds of appeal can be summarised as follows. The first is that the judge below failed to appreciate the unusual nature of the applicant's case. Given the basis of the adjudicator's determination the applicant's case under Article 6 can only get stronger the longer he remains in the United Kingdom. The respondent's decision not to grant indefinite leave at this stage was therefore unreasonable. The second ground is that the judge below failed to consider the fact that the respondent had fettered his discretion by applying a policy without regard to the particular circumstances of the case.

I consider that those matters are arguable and that leave to apply for judicial review ought to have been granted. It is right that the Secretary of State is entitled to devise a policy, provided that the policy is not over rigidly applied. The policy in this case is one that deals with a number of different situations. It seems to me that when one studies the letter of 11 August 2003 with its references to the situation in the other country, and when one also takes into account the response of the Home Office to the letter written by the solicitors dated 27 September 2003, it is quite apparent that the particular circumstances of this case have not properly been considered. If they had been, the standard paragraph would not appear in the letter of 11 August 2003. The letter of 27 September 2003 goes on to explain the position, but talks in terms of those granted leave on "protection grounds other than under the refugee Convention".

This is not a case that is in any way to do with protection. It is now a case in which leave is being granted because this man has been allowed to stay in this country so long that he has put down firm roots here and he has a right afforded to him by article 8. The following paragraph of the letter of 27 September 2003 goes on again to talk in terms of the situation and makes reference to article 3. It gives an example where an applicant would face a real risk of treatment contrary to article 3 if removed from the United Kingdom. Why that should be put in a letter which is dealing with an article 8 situation is not immediately clear to me. It is suggestive of a blanket policy being applied without any consideration of the particular facts of this case. That is the second ground that was raised in relation to this matter, and it seems to me that it is clearly arguable. With respect to the judge below, he does not seem to have addressed those matters.

The other aspect of the matter which causes me concern and in my judgment merits argument, relates to the position as put forward by the applicant that the failure to grant indefinite leave can only be a matter of putting him in a state on uncertainty for a prolonged period. It seems to me at least arguable that that in itself might amount to a breach of article 8 by the United Kingdom. It is not an interference in the sense of removing the person from where he has put down firm roots, by the right to respect for one's private life includes a right to know where one is going to live and the circumstances in which that would be altered.

To date no sensible explanation has been given by the Secretary of State to explain circumstances in which this man might have to return to Pakistan. He, therefore, cannot make long term plans confident in the knowledge that he will be allowed to remain in this country. That, it seems to me, at least arguably, does in itself amount to a breach of article 8.

For those reasons, I think that this matter should be looked at fully with the advantages of argument on behalf of the respondent. I therefore propose to allow his application and to adopt the course of simply granting permission to apply for judicial review pursuant to CPR 52.15.

Order: Application for permission to appeal allowed.