England and Wales High Court (Administrative Court) Decisions

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

		CO/4428/2013 Royal Courts of Justice Strand London WC2A 2LL
		19 June 2014

MR JUSTICE NICOL:

1. This is an application for judicial review, permission having been granted by Blake J on 29 August 2013. The claimant is a national of India who was born on 21 October 1984. He came to the UK in 2006 and was granted leave to enter as a student. His leave expired in July 2009 but he overstayed. He met Praeya Sahota, a British citizen, in about 2010.
2. On 11 June 2012, solicitors on his behalf applied for leave to remain outside the rules. They said on his behalf that he and Miss Sahota intended to marry. They submitted that refusal of leave to remain would be contrary to Article 8 of the European Convention on Human Rights.
3. On 1 November 2012 his solicitors made further representations. They urged the Secretary of State for the Home Department to:

"...make a quick decision on their client's case as wealth of documentary evidence has been supplied which makes his case clear cut under paragraph 276 ADE of the Immigration Rules."

By 15 April 2013, no decision had been taken. The claim form was issued, arguing that the failure to take a decision on the claimant's application was unlawful.

4. On 9 July 2013, the Secretary of State did take a decision. It was to refuse the application. The decision was structured by reference to changes in the Immigration Rules which had been laid before Parliament in the summer of 2012. This was followed shortly by an acknowledgement of service which said that, in view of the recent decision, permission should be refused. There was no application to amend the grounds.
5. The application for permission to apply for judicial review was considered on the papers by Blake J. He very much doubted the original challenge based on delay had merit, even though 13 months had elapsed by the time the decision was ultimately taken. Nonetheless, he observed that the preamble to the 2012 change in the rules had said that the appendix FM, which concerned the Article 8 applications, applied to applications made on or after 9 July 2012. He noted further:

"It is uncertain what rules or policies did apply to a pre 9 July 2012 application for regularisation outside the rules on the basis of a relationship with a British national but the decision letter only applies criteria that do not appear to be applicable to an application that was not a Part 8 application." [Viz, an application under part 8 of the statement of changes laid on 13 June 2012.]

An application to amend formally the claim form to adopt Blake J's ground of challenge was not opposed by Mr Malik on behalf of the Secretary of State for the Home Department.

6. To complete the chronology, on 17 June 2014, a supplemental decision was taken by the Secretary of State; the refusal was maintained. The Secretary of State said there was nothing exceptional about the claimant's case in the sense that refusal of the application would not be disproportionate. It was said that the claimant's relationship with Miss Sahota began when he was already an over-stayer. At the time of his application, he had known her less than two years and had been living with her for approximately 17 months. There were no insurmountable obstacles for the couple enjoying their family life in India. Alternatively, he could leave temporarily and apply for entry clearance from India. He was engaged in business in the UK but this had started while he was a over-stayer. He did not have permission to be in the UK to engage in business. In summary the Secretary of State considered that refusal of leave would be a proportionate interference with the claimant's private and family life.
7. Mr Roe QC, on behalf of the claimant, submits that the decisions of both July 2013 and June 2014 are tainted by illegality. Contrary to what the Secretary of State said in the preamble to the 2012 Rule changes, she had applied the changed rules to the claimant's application, even though it had been made before the critical date of 9 July 2012. The court might refuse relief if the Secretary of State would have been bound to refuse the application by adopting the pre-July 2012 approach to Article 8 applications. But the burden of showing that this was so was on the Secretary of State and she could not succeed in doing that.
8. The 2012 changes made a number of amendments to the Immigration Rules. These included alterations to the period of long unlawful residence, which would normally be necessary before leave to remain would be granted. The period was increased from 14 to 20 years. In Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402, the Court of Appeal held that it was an error of law to apply the new, longer, period to an application which had been made before 9 July 2012, see paragraph 35. Article 8 applications are not as simple. Prior to that date, the Immigration Rules did not, as such, deal with them. Although they did deal with individual situations which might give rise to Article 8 considerations, none of these were directly material to the present case. Instead, those who considered that a refusal to grant leave to remain would be a disproportionate interference with their private or family rights based their applications to the Secretary of State directly on Article 8, applied of course in domestic law by the Human Rights Act 1998.
9. In Edgehill the Secretary of State had submitted that, since a pre-July 2012 Article 8 application was not an application under the rules, the transitional provisions did not apply to it. The Court of Appeal rejected the argument. The natural and ordinary meaning of the transitional provision was that the Secretary of State would not place reliance on the new rules when dealing with applications, including Article 8 applications made before 9 July 2012, see Edgehill at paragraph 32.
10. The new rules concerning Article 8 are not hard-edged. They recognise that there may be exceptional circumstances where leave should be granted even though the specific criteria are not met. In Nagre v Secretary of State for the Home Department [2013] EWHC 720 Sales J found that the concept of "exceptional circumstances" in the new rules, when considered with the guidance issued by the Secretary of State equated to cases where removal would be disproportionate. On this basis, the new rules were compliant with Article 8.
11. Mr Roe argued that there could be no place in a decision on a pre-9 July 2012 application for any reference to the structure of decision-making contained in the new rules. There is some support for that in Edgehill as I have shown, although a different approach has been taken by a different constitution of the Court of Appeal in Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558 at paragraph 40 and by Philip Mott, QC, Sitting as a Deputy Judge of the High Court in Rafiq v Secretary of State for the Home Department [2014] EWHC 1654 (Admin).
12. In my judgment, it is not necessary for me to resolve this difference. I shall adopt the approach most favourable to the claimant, that is the one in Edgehill. Nonetheless, Mr Roe accepts that he cannot succeed if the decision inevitably would have been the same even if the Secretary of State had paid no attention at all to the criteria in the new rules.
13. I have no doubt that would have been the case. The claimant is a fit young man who grew up in India. At the time of the Secretary of State's decision in 2013 he had been in the UK for seven years, but four of them had been unlawfully. His relationship with Miss Sahota began when he was here unlawfully. There are no children and, while that is not determinative, it does mean that there are not the extra considerations which the court has to take into account when refusal of leave to remain would impact on children as well as the person who would have to leave the UK. He has a business, but that, too, was begun while the claimant was in the UK unlawfully.
14. Bearing these factors in mind, as well as all the other matters that were drawn to the Secretary of State's attention, I am certain the Secretary of State would have decided that refusal of leave would not be disproportionate even if the tests and structure of the decision-making in the new rules have not been referred to. Indeed, the decision letter of 17 June 2014 does reach precisely that conclusion. Like Mr Mott in the Rafiq case therefore, I conclude that the reliance on the new rules was not a consideration materially affecting the decision, as the result would have been the same in any case. Similarly, in Edgehill the Court of Appeal considered that the Article 8 claim of HB was a weak one, and the court concluded that both the Secretary of State and the Tribunals would have made precisely the same decision, whether or not they had regard to the new rules, see paragraph 38.
15. The claimant wished to apply to add a yet further ground challenging the part of the decision letter of 9 July 2013 which had observed that the claimant had put no evidence before the Secretary of State of his relationship with Miss Sahota. The claimant submitted that was erroneous and said there was ample supporting evidence before the Secretary of State of his relationships with Miss Sahota and that this was a genuine and established relationship. Whatever the merit of this challenge in relation to the 2013 decision, it does not help the claimant now in view of the recent decision in June 2014. For all of these reasons I consider that the application for judicial review must be dismissed.