England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 August 2010

1. THE DEPUTY JUDGE: In this case the claimant, by judicial review proceedings commenced on 6 July 2009, challenges the Secretary of State's decision of 22 May 2009 to refuse indefinite leave to remain. The situation appears to be that the claimant has not yet been required to leave; whether he will be is for another day.

1. The claimant is a Pakistani and he is now 30. He came here in 1998 as a student and there were various extensions of leave to remain which lasted until 30 June 2009. There were some gaps in that one of his leaves to remain expired on 1 October 2003 and he did not make his application for an extension until 28 October 2003. It was eventually granted on 9 December. Again, in 2004 he had leave to remain until the end of November but he did not actually submit his application for an extension until 8 December 2004, so that there was a one week period then when he was not lawfully resident in the country.
2. The claimant puts forward in his Grounds three contentions. The first is that the Secretary of State has misconstrued paragraph 276B of the Immigration Rules; secondly, legitimate expectation and that the decision was conspicuously unfair; and thirdly, that the decision was irrational and perverse. The matter came before the single judge on 20 November 2009 and Dobbs J thought that, in the light of the gaps, the decision was not arguably unreasonable or irrational.
3. There was a renewal on 25 November and the way in which it has been argued before me this morning is a little bit different from the way the matter appeared when it was before Dobbs J. First of all, what is said is that the relevant paragraph, 276B, and I think 276A more particularly, need to be read in a way which recognises the claimant's Article 8 rights and that, despite the decision of the Court of Appeal in MD (Jamaica) and GE (Canada) v Secretary of State for the Home Department [2010] EWCA Civ 213, that remains an approach open to this court for two reasons. First, because that point was expressly not taken in the Jamaica case, and I was taken to a passage in the judgment (paragraph 20) where it was made plain that that particular point was not being taken and it was not being taken because it was going to be the subject of argument in another case in the Supreme Court; and secondly, my attention is drawn to the recent authority in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 which is relied upon for advancing the law in respect of the legal status of the Immigration Rules. In his judgment in that case, and in particular paragraph 17, Sedley LJ said that the immigration rules can be:

"no more immune to challenge for abuse of power or for violation of human rights than any other exercise of the prerogorative power".

What is suggested is that I should "read down" the stark language of the two parts of the relevant paragraph of the Immigration Rules and, in that way, circumvent the rigour of MD (Jamaica).

4. So far as Ground 2, there is no longer any attempt to pursue the legitimate expectation ground. If I may say so, that is plainly right. But what is said is that the latter part of that ground, which was conspicuous unfairness, runs together with Ground 3 and that, in the circumstances of this case, the particular decision was unfair or irrational because it was taken without seeking from the claimant information as to whether there was any explanation for the two relatively short gaps in his lawful residence which the Secretary of State was minded to rely on, and did rely on, in the decision which was eventually reached and which is under challenge.
5. Responding to that matter for the Secretary of State, Mr Barnes, who I asked to concentrate on the unfairness and irrationality ground, contends that there is no requirement on the Secretary of State to seek explanations from claimants in the position of Mr Syed, that the obligation is on a person who is seeking to rely on a period of 10 years lawful residence to provide an explanation if the period has not been continuous, whereas no explanation was given in this case. In any event, the explanations given by the claimant in his witness statement -- namely that, on the first occasion he may have had various university commitments which was the reason why he was about 4 weeks late in putting in his application, and that on the second occasion he may have had hepatitis and that that may explain that week -- those matters are very tentative and that, certainly the first of those, is the sort of matter which would never have persuaded anyone that the claimant had complied with the requirement of the relevant IDI, paragraph 2.3.3, which says that a claimant must have "made every attempt to comply" and that, simply for academic reasons, not to have made an application could not possibly qualify. Therefore, even if there was any obligation on the Secretary of State to seek an explanation, it is clear on the facts of this case that there was no explanation. Furthermore, the claimant has been on notice for a considerable period of time as to the reasons why his application was refused and, since the summary grounds of defence were received, the Secretary of State's attitude towards the grounds which have been put forward has been clear.
6. I am persuaded that Ground 1 is wholly unarguable. I can see no reason to read paragraph 276B down in the way which is suggested and, indeed Mr Malik has been unable to produce any verbal formulation as to how those two rules, 276A and B, should be read in the light of his submission that they somehow, through Article 8, obtain a different meaning to the straightforward reading of those rules as found by the courts in MD (Jamaica). As it seems to me, there have been plainly two gaps in the period of lawful residence; there has not been compliance with the rules and it is impossible to contend otherwise.
7. 8.1. I do not consider that the decision in the Pankina case assists the claimant in what he seeks to do, nor do I believe that a strict interpretation of the rules leads to what was described in paragraph 22 of the Grounds as "systemic unfairness". It does not seem to me that there is any systemic unfairness because of the provisions in the IDIs (Immigration Directorate Instructions) which allow for a measure of discretion in their interpretation. I do not accept what is said in paragraph 11 of the Grounds, that a strict interpretation will "render ineffective the evident purpose of the rule".
8. So far as Ground 2, there has been no attempt to rely on legitimate expectation. That was always completely misconceived and I need not deal with it, save to say that it is unarguable.
9. I come then to Ground 3. One reads Ground 3, which was the challenge to the irrationality of the decision, as also incorporating the latter part of Ground 2 which was alleging conspicuous unfairness. The IDI at paragraph 2.3.3 has a simple test as to whether a claimant has "made every attempt to comply", that is in recognition that there may be some circumstances in which it would not be reasonably possible to comply. The IDI says that case workers should allow for:

"a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time)".

Of course, the claimant fails that test because there have been two gaps, not one gap, and the first of those gaps was not one of less than 10 calendar days. It was, I think, 28 calendar days. The IDI also says that:

"It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence".

That reference to "usually" makes it clear that there can be occasions when it would be reasonable and fair to allow more than one gap. The rules go on to refer to the existence of "extenuating reasons" and it gives some examples of extenuating reasons, and case workers have got to apply their discretion in these matters, referring up to a level above in difficult cases. The question which arises now is whether it can be said that the defendant here has been unreasonable or unfair in failing to allow the claimant these two gaps.

10. I do not think it can possibly be said to have been irrational not to have allowed them and, on the facts of the MD (Jamaica) case, Ms Drysdale had got two gaps, one of them was 2 weeks and one was 7 weeks (see paragraph 6), so they were not really different in kind from the gaps with which we are dealing with here, although admittedly the ones here are rather shorter. I have found troubling the question that case workers do not appear to have any procedure for investigating whether there are extenuating reasons in the cases where there have only been short gaps and where, despite the short gaps, it is proposed to refuse leave to remain. It seems to me that it would be a considerable improvement on the procedures if there such provision were made. The way the system presently works can work injustice, in that there may be very good reasons for the relatively short gaps, reasons which, if taken into account, would lead to a different decision. On the other hand, here there is the very considerable difficulty for the claimant that he has put forward no evidence as to making attempts to comply in 2003. He merely says in his witness statement that, at the time, he was studying, that there were various academic requirements and that these may be the reason why he did not put in the application. So far as the second matter he says that at some stage he had hepatitis, he may have had hepatitis during that week, and that may be the reason.
11. I have hesitated as to whether it might be said that here there is an arguable ground, albeit an unpromising one. But at the end of the day it does seem to me that, on the particular facts of this case, the claimant has no chance of succeeding. He has had ample time to formulate properly what the extenuating circumstances were. He has failed to show what the precise reasons were in each of the two periods and, certainly, were the matter remitted again on the basis of the present evidence, it is inevitable that the same decision would be reached. Accordingly, permission is refused.
12. What is the position here on costs?

14. MR BARNES: My Lord, Dobbs J made an order.

15. THE DEPUTY JUDGE: Then I need not say more. She has already granted the costs and therefore no further matter arises.

16. MR BARNES: Exactly, my Lord. Unless my learned friend has anything to add?

17. THE DEPUTY JUDGE: Is there a question of legal aid taxation?

18. MR MALIK: No, my Lord. The claimant is privately funded.

19. THE DEPUTY JUDGE: He is privately funded. Very well, thank you both very much for your submissions.