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
		25 March 2014

THE DEPUTY JUDGE:

1. This is an application for judicial review by Zia Mohammad, a citizen of Pakistan, who seeks to challenge the decision of the Secretary of State for the Home Department set out in two letters dated 18 and 23 May 2012, whereby his application for refugee status as the dependant partner of MsRukhsanaKausar was refused. The case turns on the proper construction of paragraph 349 of the Immigration Rules (HC 395) and in particular whether the circumstances in which the claimant pursued his application for asylum compelled the Secretary of State to grant him refugee status in accordance with that granted to MsKausar, or whether the decision to grant him humanitarian protection in accordance with paragraph 339C of the Rules and to issue him with a residence permit valid, like his partner's, until 14 December 2016, represents a lawful discharge of the Secretary of State's decision making duty.
2. The full history of this case is somewhat complex including, as it does, two sets of appeal proceedings before an immigration judge and a previous judicial review application in 2009/2010 which was ultimately withdrawn by consent. But the essential facts can be stated relatively briefly and are as follows.
3. The claimant and MsKausar arrived together in the UK in March 2005 and claimed asylum and/or humanitarian protection which was refused by the Secretary of State in separate decisions issued on 15 June 2005 and 7 July 2005 respectively. The basis for the asylum/human rights claims was a fear that they would face ill treatment and possible death if they returned to Pakistan because of the nature of their relationship, and the fact that MsKausar was married to a man in Pakistan who had already made one attempt to murder her by setting her on fire on discovering the fact of her pre-existing and continuing intimate relationship with the claimant. It is clear that not only had the claimant and Ms Kausar lodged separate applications in 2005, but that Immigration Judge Hanratty reached separate decisions in each of their cases when he dismissed both appeals in a single determination dated 31 October 2005 (see his determination at pages 155-169 of the trial bundle).
4. At no stage in 2005 was it suggested that the claimant's claim for asylum or his human rights claim was pursued as a dependant of his wife in the sense that it had no independent existence or viability on its own merits. Appeal rights for both the claimant and MsKausar became exhausted on 1 December 2005 and so by the end of 2005, there was no outstanding application before the Secretary of State in relation either to the claimant or his partner.
5. For several years nothing of significance happened, save that the claimant and MsKausar remained in the UK until they were arrested on 6 October 2009 and detained. Both the claimant and MsKausar lodged further submissions for asylum/humanitarian protection on 19 November 2009. The letter from Morgan Mark solicitors, then acting for the claimant and MsKausar, makes no mention of Mr Zia applying as a dependant of Ms Kausar (see page 149-154 of the trial bundle) and indeed the letter refers to them both as being "known at large to have an illicit relationship to each other and they run a greater risk of being killed under the banner of honour killings". Consistent with their status as separate rather than dependant applicants for discretionary leave, the Secretary of State issued separate refusal letters to the claimant and Ms Kausar dated 23 November 2009 (see pages 131-144 of the trial bundle).
6. It is true that in a letter dated 8 December 2009, a new solicitor then acting for the claimant and Ms Kausar wrote a letter to the Administrative Court which referred in the subject heading of the letter to Mr Zia as a dependant husband. But that letter also made clear that the solicitors were not yet in possession of their clients' immigration files held by the previous firm. It seems to me impossible to read anything of significance into the use of the word dependant within this letter. Certainly the concept and basis of any dependency claim was never articulated.
7. In the course of 2010 and in light of the Secretary of State's agreement to reconsider the fresh applications made in November 2009, there was a sequence of correspondence between the UKBA and the solicitors acting for the claimant and MsKausar. It appears from those letters that the UKBA was indeed under the impression that the only person on whose behalf the solicitors were acting was MsKausar with the claimant being treated as dependant on her pending submission (see, for example, the letters dated 3, 9, 10 and 26 October 2010 on page 62 and page 64 of the trial bundle). The substantive decision letter dated 3 September 2010 made clear that the Secretary of State rejected MsKausar's fresh asylum claim and that she was entitled to appeal against that decision under section 82 of the Nationality, Immigration and Asylum Act 2002. It also stated that both MsKausar and the claimant were entitled to remain in the UK pending any appeal. It is accepted by the Secretary of State that, in error, no discrete refusal notice was issued to the claimant in September 2010.
8. Both MsKausar and the claimant pursued an appeal and their appeals were determined by Immigration Judge Simpson on 24 May 2011. In paragraph 1 of his determination he recorded the fact that the refusal letter dated 3 September 2010 appeared to acknowledge only MsKausar as an appellant, but he went on to say:

i. "It is agreed that I should regard both claims as extant, the claim by Mr Zia being dependent on that of MsKausar."

9. Of potentially greater significance is what Judge Simpson said when he came to decide the outcome of the appeals. In relation to MsKausar, he allowed her appeal on asylum grounds. In determining the appeal of Mr Zia, he expressly rejected his asylum claim on the basis that he was not a part of a defined social group and his claim did not disclose a ground under the Convention. He did, however, accept that were Mr Zia to return to Pakistan he would face a high risk of suffering treatment in breach of Article 3 at the hands of the family members. Accordingly, while he rejected his asylum claim, he allowed the claimant's appeal on humanitarian grounds. Judge Simpson's ruling contains no express direction to the Secretary of State pursuant to section 87 of the 2002 Act. There was no appeal pursued by the claimant against Judge Simpson's decision to reject his asylum appeal. Overall, it seems patently clear that Judge Simpson approached the appeal on the basis that he was required to resolve two separate appeals. He plainly made separate determinations in relation to the facts of each appeal.
10. On 8 February 2012, MsKausar and the couple's daughter, Zarmeen Zia, born on 9 February 2011, were issued with refugee status documents and residence permits valid until 14 December 2016. The claimant was also issued with a residence permit valid until the same date, but he was not given documents granting him refugee status.
11. On 1 May 2012, the claimant's new solicitor, Asylum Aid, wrote a letter before action to the Secretary of State which contained two confusing demands. First, it requested the UKBA to issue Mr Zia with what it termed "the correct refugee status document without delay" on the basis that Mr Zia was a dependant in his partner's appeal and that as her appeal was allowed on asylum grounds he wastherefore entitled to leave in line with hers. The assertion was made that the claimant was a dependant within the appeal process, but no acknowledgment was made that the immigration judge had separately determined the claims of the claimant and his partner. Although the letter before action made reference to EU law provisions, there was no reference to paragraph 349 of the Immigration Rules.
12. The second demand - contradicting, it would seem, the first - came at the end of the letter before action. Under the heading "details of the action that the Defendant is expected to take" it was stated the Secretary of State was invited to make a substantive decision on "the outstanding asylum claim" within 21 days of the date of this letter. There was, of course, no outstanding asylum claim in May 2012 and, as already stated, there had been no appeal by the claimant against the immigration judge's ruling in which he expressly dismissed Mr Zia's asylum claim.
13. In response to the letter before action, the Secretary of State issued two letters dated 18 and 23 May 2012. In short, the thrust of these letters was to accept that errors had been made in handling the claims of the claimant, MsKausar and their child, including a failure to issue a discrete refusal notice to the claimant on 3 September 2010, but it was said that any such errors could not convert Mr Zia into a dependant of Ms Kausar in circumstances where his claim was not, in fact, dependent on any claim she might have and where the immigration judge had reached separate decisions in the respective appeals.
14. The letters also made two further points, neither of which seems to me to be either correct or ultimately relevant. First, it was suggested that Mr Zia's original 2005 asylum application had never been withdrawn and that this meant that he could not now in 2012 be a dependant of his partner, MsKausar. Secondly, it was suggested that if Judge Simpson had formally recognised the claimant as a dependant of Ms Kausar in the proceedings before him, he would have noted that Mr Zia could only exercise his right of appeal from outside the UK. Neither of these points is right, in my view, for the reasons given in paragraphs 19 and 20 of the Claimant's skeleton argument prepared by Mr Eaton, but equally it would seem that neither point is actually relevant to the issue I must now determine.
15. Having set out the relevant factual background, I turn to the rival submissions. Before doing so, it is necessary to refer to the relevant Immigration Rules. Paragraph 334 governs the grant of asylum, whereas the grant of humanitarian protection is governed by paragraph 339C. Their provisions are well known and I need not recite them. The grant of residence permits is governed by paragraph 339Q and makes clear that United Kingdom residence permits will be granted as soon as possible after the grant of asylum and humanitarian protection for a period of five years. Paragraph 349 deals with the position of dependants and deserves full citation:

i. "A spouse, civil partner, unmarried or same-sex partner, or minor child accompanying a principal applicant may be included in his application for asylum as his dependant, provided, in the case of an adult dependant with legal capacity, the dependant consents to being treated as such at the time the application is lodged. A spouse, civil partner, unmarried or same-sex partner or minor child may also claim asylum in his own right. If the principal applicant is granted asylum or humanitarian protection and leave to enter or remain any spouse, civil partner, unmarried or same-sex partner or minor child will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right will be also considered individually in accordance with paragraph 334 above. An applicant under this paragraph, including an accompanied child, may be interviewed where he makes a claim as a dependant or in his own right."

ii. "If the spouse, civil partner, unmarried or same-sex partner, or minor child in question has a claim in his own right, that claim should be made at the earliest opportunity. Any failure to do so will be taken into account and may damage credibility if no reasonable explanation for it is given. Where an asylum or humanitarian protection application is unsuccessful, at the same time that asylum or humanitarian protection is refused the applicant may be notified of removal directions or served with a notice of the Secretary of State's intention to deport him, as appropriate. In this paragraph and paragraphs 350-352 a child means a person who is under 18 years of age or who, in the absence of documentary evidence establishing age, appears to be under that age. An unmarried or same sex partner for the purposes of this paragraph, is a person who has been living together with the principal applicant in a subsisting relationship akin to marriage or a civil partnership for two years or more."

16. On behalf of the claimant, it was originally submitted in Mr Eaton's skeleton argument that, as a dependant on his partner's asylum appeal in 2011, the claimant's position was governed by paragraph 349 of the Rules and as the claimant had no distinct claim or right of appeal, the outcome of MsKausar's appeal was necessarily determinative of his. Reliance was placed on the Secretary of State's mistaken failure to issue a discrete decision letter on 3 September 2010 at the same time as issuing one in relation to MsKausar, as well as Judge Simpson's acceptance at the outset of his determination that the claimant's claim was dependent on that of MsKausar. These facts meant, according to the skeleton argument, that the Secretary of State was duty bound to grant refugee status to the Claimant.
17. In the course of oral submissions, Mr Eaton acknowledged that in view of the wording of paragraph 349 and the fact that it makes clear that the Secretary of State's obligation is to grant a dependant partner leave to remain for the same duration as the principal applicant rather than in a particular capacity, he could not sustain paragraph 349 as the source of the relevant legal duty. Accordingly, he sought to develop an alternative line of argument based on legitimate expectation, in effect seeking to argue that it was the Secretary of State's policy and indeed her practice to grant asylum status to all persons dependent on an individual who has been granted refugee status as the principal applicant. However, he produced no written policy to this effect, merely relying on the guidance for issuing status documentation for grants of leave which, in my view, did not support the argument based on legitimate expectation.
18. On behalf of the Secretary of State, Mr Malik submitted that the issue simply involves construing the meaning of the relevant Immigration Rule in accordance with the approach approved by the Supreme Court in Mahad v Entry Clearance Officer [2010] 1 WLR 48 paragraph 10 and that is clear beyond argument that the claimantdoes not qualify for refugee status as a dependant of MsKausar pursuant to paragraph 349 of the Rules.
19. He emphasises that in 2005, the claimant and Ms Kausar made separate applications for asylum that were dealt with separately. In light of that undoubted fact, he submits it is fanciful now to try and convert Mr Zia's further submissions in 2009 into an application as a dependant of Ms Kausar, particularly in light of the fact that the further submissions were never formally stated to be made as a dependant. He also takes the somewhat technical point that paragraph 349 relates to an application for asylum and that further submissions made after the refusal of the application for asylum are not "an application for asylum".
20. His more fundamental point, however, is that on the clear language of paragraph 349, the Secretary of State is not required to grant asylum to a dependant partner merely because the principal applicant has been granted asylum. The requirement is to grant leave to remain for the same duration. This is precisely what happened. Moreover, the fact that the Secretary of State made a mistake in September 2010 and failed to issue a discrete decision letter in relation to the claimant cannot make the claimant dependent for the purpose of the Rule. The immigration judge's determination of 24 May 2011 concluded that while Ms Kausar qualified for asylum, the claimant did not and the judge was never asked nor did he make a direction for the claimant to be granted refugee status. In the circumstances, there is no reason why the Secretary of State should be required to go further than the judge's decision, not least because the claimant chose not to pursue an appeal.
21. In my view, Mr Malik's analysis of the relevant law as applied to the facts of this case is correct. There is nothing in paragraph 349 of the Rules that requires the Secretary of State to extend refugee status to Mr Zia even if his application were properly to be categorised as dependent on that of his partner. The Rule requires the dependant applicant to be granted leave to enter or remain for the same duration, rather than leave in a particular capacity.
22. In any event, I am satisfied that, looking at the sequence of events as a whole, there never was at any time a formal application by Mr Zia to have his application treated as being dependent upon that of Ms Kausar. The fact that he was at times mistakenly described as being dependent upon her cannot alter the true position. He had a claim in his own right at all times. Indeed, the immigration judge upheld his appeal in May 2011 on the basis that he was entitled to humanitarian protection in his own right. In light of that clear, discrete finding and the equally clear rejection of his claim for asylum, I see no basis for any argument that the Secretary of State was legally bound to grant him refugee status in the wake of Judge Simpson's ruling.
23. I am bound to say that having reflected on the practical purpose of this application, I tend to agree with Hickinbottom J who commented when he refused leave on the papers in December 2012 that, regardless of its merits, the claim is empty in any event. I asked Mr Eaton what detriment was caused to the claimant by not being granted refugee status in circumstances where his residence permit permits him leave to remain in the UK until December 2016, at which point, subject to him not falling foul of the law or presenting a threat to national security, he will be granted indefinite leave to remain together with his partner and child. I was told that the detriment lay in the fact that without formal refugee status, there would be difficulties in travelling to certain named countries should he wish to do so, although Mr Eaton accepted there is no evidence that the claimant actually wants to travel to any of these countries.
24. I asked also why Mr Zia had not applied for a Pakistani passport, to which he is apparently entitled. Mr Eaton suggested it might be awkward or somehow inappropriate to expect the claimant to approach the Pakistani authorities for a new passport, should he need one, in circumstances where he has secured humanitarian protection from return to that country. Absent evidence that Pakistan would decline to issue a passport to one of its citizens entitled to receive one, I did not understand why the claimant had not attempted or cannot now attempt to secure a Pakistani passport if he really does wish to travel abroad. It is plainly the case that he has never made any such application.
25. Accordingly, this application is dismissed.
26. MR MALIK: My Lord, I am very grateful for this. I have an application for costs. I do not have a schedule, so I simply ask my Lord to make an order requiring the Claimant to pay the Secretary of State's costs, to be assessed if not agreed.
27. THE DEPUTY JUDGE: Mr Eaton?
28. MR EATON: I have no position to resist that. The only thing I would say is that we are publicly funded so I seek an order for a detailed assessment.
29. THE DEPUTY JUDGE: Yes, I make that order.
30. MR EATON: Thank you.
31. THE DEPUTY JUDGE: Thank you very much.