QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
|THE QUEEN ON THE APPLICATION OF SHANTAL CHANDIKA PERSAD||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Miss S Chan (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"The current state of the law dealing with certificates that a claim is clearly unfounded is now reasonably well established after a series of decisions. First of all, the court's role in such a case is to apply normal judicial review principles, though with the addition of 'anxious scrutiny' to the Secretary of State's decision to certify, rather than substituting its own view as to whether it is clearly unfounded [reference is then made to the salient paragraphs of ZT Kosovo] ... This approach however will rarely produce a different result from the court arriving at its own view on the issue, at least where the primary facts are not in dispute ... The test is whether the Secretary of State's decision to certify was irrational, but if the court concludes that a claim is not clearly unfounded it is hard to think of the circumstances where the court would regard the decision as a rational one."
"... the decision maker will -
i) consider the factual substance and detail of the claim
ii) consider how it stands with the known background data
iii)consider whether in the round it is capable of belief
iv) if not, consider whether some of it is capable of belief
v) consider whether, if eventually believed in whole or in part, it is capable of coming within the convention.
If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not."
I accordingly direct myself in those terms.
"However, Mr Sadiq is not settled in the UK. He has temporary leave until 10 June 2013. At the time you claim to have entered into a relationship with him, in February 2006, he had temporary leave to remain until January 2007 and you had temporary leave until January 2008. It is considered that you entered into the relationship knowing that you were both in the UK temporarily and that neither of you had any reasonable expectation that you would be able to remain in the UK for longer than the time permitted by your visas at that time."
"Your leave expired in January 2008 and you applied for a short temporary extension in order to arrange your return to South Africa. Leave was granted until July 2008 but it was made clear to you that this was being granted exceptionally outside the rules, that any further extensions on the same basis would be very unlikely and that you were expected to leave on or before the expiry date. Instead, you subsequently made two applications for student leave, the first of which was rejected and the second of which was refused. As of January 2009 you had no leave to remain in the UK and were told that you were required to leave. You failed to do so. Not only that but you obtained illegal work in the UK, in the full knowledge that you had no legal basis of stay in the UK and no entitlement to work here."
In paragraph 50 the letter says:
"It is considered that you entered into the relationship with Mr Sadiq knowing that you were both in the UK temporarily. As of January 2009, you had no legal basis to stay in the UK but continued to remain here unlawfully. You also obtained work illegally. In fact, you only came to the attention of UK immigration officials when they encountered you working illegally..."
In paragraph 51:
"In the light of your immigration history, it is considered that any interference caused by your removal as regards your relationship with your partner is proportionate. You knew that you both had temporary status when you embarked on the relationship. You then blatantly disregarded immigration control by failing to leave at the end of your temporary stay and prolonged your unlawful stay by obtaining illegal work here. Mr Sadiq is here temporarily and you have no leave at all. It is not accepted that there would be a disproportionate interference to your family life caused by your removal to South Africa."
(1) Claim for judicial review dismissed;
(2) The claimant shall pay the defendant's costs of the application, to be the subject of a detailed assessment in any event.