England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 June 2014

Christopher Butcher QC :

1. The Claimant ("Mr Shabhaz") seeks judicial review of a decision of the Home Secretary said to have been made on 25 October 2012, refusing Mr Shabhaz, together with his wife and children, indefinite leave to remain ("ILR") in the UK. Mr Shabhaz seeks a quashing order.

The Facts

2. Mr Shabhaz came to the UK on 1 October 2003 as Work Permit Holder. He was subsequently joined by his wife and three children. On 26 September 2007 his Work Permit was extended until 26 September 2012.
3. On 10 September 2008 Mr Shabhaz made an application for ILR. This was refused on 31 May 2009 on the basis that he had spent more than 3 months outside the UK. In the meantime, Mr Shabhaz's work permit had been revoked, but was reinstated on 17 April 2009 as his employer had submitted all necessary documents in support of his application.
4. On 3 September 2009 Mr Shabhaz made another application for ILR for himself and for all his dependants. On 16 May 2012, in answer to a letter from UKBA, Mr Shabhaz stated that he had lost his job with the Jumaira Restaurant, London Road, Sheffield, over a year before; that he had received no redundancy pay; and that since that time he had not been able to find any other employment.
5. On 31 May 2012 Mr Shabhaz's application for ILR was refused by the Secretary of State. The decision letter referred to paragraph 134 of the Immigration Rules. It stated:

"As your work permit is considered to have been revoked and you have admitted to being unemployed, your application fails to satisfy the requirements of Paragraph 134(ii), (iii) and (iv) of the immigration rules."

6. The letter stated that the application of Mr Shabhaz's wife was refused under paragraph 196F with reference to paragraph 196D of HC 395 (as amended). Further, that his three eldest children were refused under paragraph 199 with reference to paragraph 197 of HC 395 (as amended). His youngest child was born in the UK and was refused under paragraph 306 of HC 395 (as amended).
7. The letter further stated that Mr Shabhaz's case had been considered under the provisions of the EHCR, with particular reference to Article 8. It was stated that, given that Mr Shabhaz currently had valid leave to remain in the UK until 26 September 2012, he was not required to leave the UK as a result of the decision, and accordingly it would not interfere with his family life.
8. For the same reason, because he had leave to remain until 26 September 2012, and was not required to leave the UK as a result of the decision, he had no right to appeal against it.
9. On 10 June 2012, Mr Shabhaz wrote to the UKBA pointing out that his Work Permit had been reinstated on 17 April 2009, and asking for reconsideration of his application, given that, at the time at which he had first submitted the application, he had had a work permit.
10. On 25 October 2012, the UKBA on behalf of the Secretary of State, wrote to Mr Shabhaz, stating that his application had been reconsidered. It was recognised that Mr Shabhaz's Work Permit had been reinstated on 17 April 2009. It was stated that, nevertheless, "at the time of submitting your application for indefinite leave to remain as a work permit holder you had yourself stated that you were unemployed" and that as a result Mr Shabhaz did not satisfy paragraph 134(iii) or (iv) of the Immigration Rules.
11. The letter of 25 October 2012 continued:

"Having considered the information you have now submitted with your recent (sic) I am not satisfied that you have now demonstrated that you do in fact satisfy all the requirements of the relevant immigration rules. Therefore I am satisfied that the correct decision was taken to refuse your application under the immigration rules.

It is also noted that you have claimed that you should be entitled to a right to appeal against the decision to refuse to grant you indefinite leave to remain in the United Kingdom as you had valid leave to remain in the United Kingdom at the time you submitted your application.

However as previously stated you are not entitled to a right of appeal against the decision as you had leave to remain in the United Kingdom until 26 September 2012 when the decision to refuse was made on 31 May 2012. …"

12. On this basis it was stated that the correct decision had been made and that there were no grounds for reconsideration.
13. Mr Shabhaz did not attempt to appeal the decision of 25 October 2012, if it was an effective decision. Instead, Mr Shabhaz issued his Judicial Review Claim Form on 5 February 2013. Permission to apply for Judicial Review was granted on paper by Mr Michael Kent QC (sitting as a Deputy High Court Judge) on 10 June 2013. Mr Kent QC stated, by way of Observations:

"I regard the decision of 25 October 2012 as in effect a fresh decision refusing ILR as the initial decision given on 31 May 2012 on the claimant's application for ILR made as long ago as 3 September 2009 was admittedly erroneous insofar as the Defendant wrongly assumed the Claimant had no valid work permit at the time of the application. This was corrected on reconsideration on 25 October 2012 but the application was again refused on the basis that the claimant could not then show that he had a job. While this may have been a proper ground for refusal, by then the Claimant's leave had expired, yet he could not have appealed against the May decision but could only have asked for reconsideration as he did. It appears harsh that the Claimant cannot appeal because at the time of the initial refusal he still had an extant leave to remain. It is arguable that he should be treated as having an appealable refusal made after his leave expired in September 2012 and if he succeeds on that he may be able to show, before a Tribunal, that by then he has found employment."

The Arguments

14. It was submitted for Mr Shabhaz that the October decision should be regarded as a new decision, which should have had a right of appeal. Further, that as it had not been treated as an appealable decision and/or because it had been incorrectly suggested therein that Mr Shabhaz had not had employment at the time the application for ILR was initially submitted, the decision should be quashed. More generally, it was submitted for Mr Shabhaz that it was unfair that, because of the period of delay in dealing with his application for ILR, when it came to be considered he had lost his job. In the circumstances it was said that the decision should be quashed or there should be a grant of discretionary leave.
15. For the Secretary of State Mr David Southern QC maintained, as a primary submission, that the relevant decision was not that of 25 October 2012 but that of 31 May 2012, and that the 25 October letter was merely a reconsideration of the earlier decision. The May decision was, it was submitted, a lawful decision because at the time of the decision – which, Mr Southern QC submitted, was the relevant time - Mr Shabhaz had not had a job, which was one of the grounds relied upon in the decision as indicating non-compliance with paragraph 134 of the Rules; and further that it was not an appealable decision because at that stage Mr Shabhaz had had leave to remain.
16. Mr Southern further submitted, however, that even if it was unduly technical to consider that the only relevant decision was that of 31 May 2012, and that there should be regarded as having been a further decision in October 2012, nevertheless the result should be the same and the application should be dismissed. In this context he submitted that, if regarded as a fresh decision refusing ILR, the 25 October 2012 letter was lawful. At the time of that decision, Mr Shabhaz did not have a job and did not meet the requirement of paragraph 134(iii) or (iv) of the Immigration Rules, and in those circumstances the policy of the Home Secretary, as set out in paragraph 135 of the Immigration Rules, is to refuse ILR. He submitted that, in the circumstances, it is difficult to see how the Secretary of State could have come to any other decision than she did.
17. Further, Mr Southern QC submitted that the concern of Mr Michael Kent QC, in granting permission to make an application for Judicial Review, had been that there was an unfairness because Mr Shabhaz had no legal remedy by which means he could have brought any relevant change of circumstances to the court's attention. This concern had been fully addressed by the grant of leave to seek judicial review. But in these proceedings, no change of circumstances had been put in evidence.

Decision

18. In my judgment the submissions of Mr Southern QC for the Secretary of State are correct. This is for the following reasons:

i) The relevant decision was that of 25 May 2012. That was a decision which the Secretary of State was entitled to reach, on the basis of paragraph 135 of the Immigration Rules by reference to paragraph 134(iii) and (iv) of those Rules. The relevant time for judging whether those paragraphs were complied with was the time of the decision, not the time of the original making of the application. The erroneous statement as to the revocation of the Work Permit was not material, given Mr Shabhaz's unemployment.

ii) If I am wrong that the relevant decision was that of 31 May 2012, and the decision of 25 October 2012 was a separate decision to refuse ILR, and was the effective decision in this case, it was one which, again, the Secretary of State was entitled to make on the basis of paragraph 135 of the Immigration Rules by reference to paragraphs 134(iii) and (iv) of those Rules.

iii) Although the October 2012 decision – if a separate decision – was treated as non-appealable, the Claimant has been afforded with a means of legal redress to challenge any unlawfulness in the October decision by means of these Judicial Review proceedings. No material has been adduced in these proceedings to show that a decision at that time to refuse ILR was unlawful. Indeed, no material has been adduced indicating that there has been any relevant change in circumstances since the May 2012 decision.

iv) Judicial Review proceedings provided an adequate means of legal redress, and was not less effective than an appeal. As I understood it, it was accepted on behalf of Mr Shabhaz that if there were now an appeal to the First Tier Tribunal, it would not be successful.

19. For these reasons I dismiss the application for Judicial Review. If there are any consequential applications arising from my decision, they should be made in writing within 7 days of the handing down of this judgment.