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
		27/02/2015

Mr Christopher Butcher QC:



 


1. Phaniang Woodward, whom I shall call the Claimant, seeks judicial review of a decision of the Secretary of State for the Home Department which is said in the Claim Form to have been dated 5 February 2013. That decision was to refuse her application for leave to remain in the United Kingdom on the basis of her marriage to a British citizen, Mr Alan Woodward. Permission to bring this application was granted by Swift J by order dated 26 November 2013.
2. The Claimant is a citizen of Thailand, and was born on 2 June 1976. She arrived in the United Kingdom on 6 June 2008, with an entry clearance as a student valid from 3 June 2008 to 3 June 2010. Shortly after her arrival in the United Kingdom she was convicted of an assault occasioning actual bodily harm. She was sentenced to 52 weeks imprisonment, suspended for 24 months, with 150 hours of unpaid work to be completed within 12 months. She subsequently married Mr Woodward and on 19 May 2010 was granted leave to remain as spouse of a person present and settled in the UK, until 19 May 2012.
3. The Claimant made an application for indefinite leave to remain in the UK on the basis of her marriage on 1 January 2012. The Secretary of State refused that application on 20 March 2012 on the ground that she had an unspent criminal conviction.
4. The Claimant attempted to make a new application for further leave to remain on 12 May 2012. The Secretary of State rejected that application on the basis that it was invalid because it had not been accompanied by the correct application fee.
5. The letter from UKBA notifying the Claimant that the application had been invalid was dated 25 May 2012. It stated, in part:

"Unfortunately, the appropriate new fee has not been received with this attempted application. We do not consider that an exception to the requirement to pay the fee applies in this case and therefore this attempted application cannot be considered as it is invalid.

…

As this attempted application is invalid it does not have any bearing on the applicant's immigration status. Any leave therefore, is not extended by virtue of Section 3C of the Immigration Act 1971 and the expiry of the applicant's leave remains unaffected by this attempted application. Any subsequent valid applications will be considered as being made on the date on which they are submitted to the appropriate address as specified on the application form. …"

6. The Claimant submitted a new, and admittedly valid, application on 8 June 2012. This was considered and refused by the Secretary of State on 5 February 2013. The decision letter commenced by identifying the rules by reference to which the decision had been made as follows:

"Paragraph 286 with reference to 284(i), 295D(iv) and Paragraph 322(v) of HC 395 (as amended)

Paragraph D-LTRP1.3 with reference to Paragraph R-LTRP1.1 (d) of Appendix FM and Paragraph 276CE with reference to Paragraph 276ADE of HC 395 (as amended)."

7. In the body of the letter it was stated that paragraph 284(i) HC 395 required that the applicant have limited leave to remain at the time of the application; that the Claimant's leave to remain had expired on 19 May 2012; and that, accordingly she had not had leave to remain at the time of her application on 8 June 2012. The letter further indicated that consideration had been given to the Claimant's family life under Article 8, by reference to Appendix FM of the rules. It was stated that she did not meet the requirements of Appendix FM R-LTRP 1.1(d) because her presence in the United Kingdom was not conducive to the public good because of the unspent conviction, and accordingly she was refused under S-LTR1.6 of Appendix FM. It was also stated that the exception in paragraph EX.1 of Appendix FM did not apply because the Claimant had not demonstrated insurmountable obstacles which would prevent her continuing her family life outside the UK, in particular in Thailand. It was further stated that the Claimant's claim that removal would breach her right to respect for private life had been considered under paragraph 276ADE of the Immigration Rules and it had been found that she did not meet the requirements thereof on the basis that she could not show that she had no social or cultural ties to Thailand.

The application for judicial review

8. The Claimant applied for Judicial Review by a Claim Form filed on 3 May 2013. The grounds then relied upon can be divided into four. First that the Secretary of State had misconstrued paragraph 284 of the Immigration Rules. In this context an argument was raised that the relevant rule provided for the disregarding of any period of overstaying of 28 days or less, and that the Claimant had not overstayed for a period of more than 28 days. Secondly it was contended that the Defendant failed to act promptly in returning the first application as invalid and should have given the Claimant an opportunity to pay the proper fee. Thirdly it was argued that the finding that the presence of the Claimant in the UK was not conducive to the public good was arbitrary and baseless. Fourthly, it was contended that the Secretary of State had not given proper consideration to the Claimant's Article 8 rights.
9. Permission to apply for Judicial Review was granted by Swift J on 26 November 2013. In granting permission she observed:

"Having regard in particular to the fact that (a) the claimant had already been convicted of the offence of assault occasioning actual bodily harm in August 2010 at the time when she was granted limited leave to remain in the UK; and (b) that the claimant arguably fell within the disregard contained in Section E-LTRP 2.2 'the applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less)', it is arguable that the defendant erred in considering her application for indefinite leave to remain and that the decision was therefore unlawful."

The letter of 30 January 2015

10. The Home Office produced a subsequent letter dated 30 January 2015. That letter stated that it "gives further consideration to your client's case and maintains the decision to refuse leave to remain". The letter stated the Defendant maintains that the Claimant did not comply with Paragraph 284(i) at the date of her application. It stated further that the Claimant's application "falls for refusal under Paragraph 322(5) of the Immigration Rules", by reason of the Claimant's conviction. In this regard the letter stated:

"Consideration has been given to the fact that she had this conviction when granted leave to remain in the United Kingdom on the basis of her marriage on 19 May 2010. However, this alone is not a good reason to ignore the conviction on this occasion. In absence of any evidence to the contrary, it is considered that her conviction makes it undesirable to allow her to remain in the UK and makes her conduct a reason for refusal of her application. There are no compelling reasons to exercise discretion in her favour under the Immigration Rules. The fact that she is married and her husband is a person present and peacefully settled in the United Kingdom is not a good reason to exercise discretion in her favour."

11. The letter proceeded to a further consideration of the Claimant's application to remain on the basis of her family life, under reference to Appendix FM, and of her private life under paragraph 276ADE of those rules, and concluded that she did not meet the requirements of either. Further the letter stated that consideration had been given to whether there were exceptional or compassionate circumstances which would lead to unduly harsh consequences for the Claimant on return to Thailand, and whether a discretion should be exercised outside the Immigration Rules. It was concluded that there were no such circumstances and that a discretion outside the Rules should not be exercised. One part of the letter dealing with this consideration read:

"The Secretary of State is satisfied that your client's circumstances are not such that she should exercise her discretion outside the Immigration Rules to grant leave to remain. It is acknowledged that she was previously given (sic) to remain on the basis of her marriage. She attempted to make an application before expiry of her leave. However, a valid application was submitted only after her leave had expired. The period of overstaying before submission of her application was less than 28 days. However, in all the circumstances, having particular regard to the reasons for her failure to qualify under the Immigration Rules and the fact that she has not provided evidence of any exceptional circumstances, it is considered that discretion outside the Immigration Rules should not be exercised in her favour."

The Defendant's Detailed Grounds of Defence

12. The Defendant served Detailed Grounds of Defence on 2 February 2015. Two particular features of those Grounds require mention:

i) It was pointed out that the amendment to Paragraph 284(iv) of the Immigration Rules, to add an exception in relation to a period of overstaying of 28 days or less, had been inserted by Paragraph 97 of HC 1039, which was laid before Parliament on 14 March 2013, and came into force on 6 April 2013, i.e. after the decision of the Defendant of 5 February 2013.

ii) Reliance was placed on the supplementary letter of 30 January 2015.

The Claimant's contentions

13. By the time of the hearing of this Application, the Claimant's case had been to some extent changed and refined from the points made in the Claim Form. Mr Kannangara confirmed that the points he took were the following five issues, though he would not necessarily have put them in this order:

i) That the Claimant's application made on 12 May 2012 was a valid application, or had not been shown to be an invalid application, and accordingly she was not an overstayer when her application was made. Reference was made to the case of Basnet v SSHD [2012] UKUT 00113 (IAC).

ii) That Paragraph 284 of the Immigration Rules, as amended by HC 1039 and HC 1138, was applicable to this case, and that under that Paragraph, as amended, the Claimant qualified.

iii) That the Defendant's failure to exercise her discretion to ignore any non-compliance with Paragraph 284(i) was unlawful, on the guidance provided by R (Forrester) v SSHD [2008] EWHC 2307 (Admin).

iv) That the Defendant was wrong to have regard to Appendix FM in this case, because the application for leave to remain was made before 9 July 2012.

v) That the Defendant's decision as to Paragraph 322(5) was irrational.

14. I will consider each of these points in turn.

Was there a valid application while the Claimant had leave?

15. The Claimant's argument in this regard was that it was for the Defendant to show that the application made on 12 May 2012 was invalid; that she had not done so; and that accordingly by virtue of s. 3C Immigration Act 1971 her leave was extended until the decision was taken on 5 February 2013. Mr Kannangara for the Claimant relied on Basnet v SSHD, especially paragraph [27], to contend that the burden of proving that the application had been invalid was on the Defendant. He further submitted that, as the Defendant had not produced the original application form (ie that submitted on 12 May 2012), had not proved what method of payment had been chosen, and had not shown why a payment had not been effected, the Defendant had failed to discharge the burden of proof.
16. I do not consider that this argument avails the Claimant on this application. The starting point is that if the original application was valid, then s. 3C Immigration Act 1971 would have applied to extend the Claimant's leave until the application was decided. The effect would have been that the Defendant's subsequent decision, albeit expressed as a refusal to grant leave to remain would, in reality, have been a refusal to vary the Claimant's leave to remain (where the result of the refusal would have been that she had no leave to enter or remain), and would thus have been an "immigration decision" for the purposes of Nationality, Immigration and Asylum Act 2002, s. 82: Ved v SSHD [2014] UKUT 150 (IAC). Such a decision would have been subject to a right of appeal. Accordingly there was an alternative remedy for a challenge based on the alleged validity of the original application and judicial review would be inappropriate.
17. If, by contrast, there was to have been a challenge to the original rejection of the first application, that could have been by way of an application for judicial review, but it would have had to have been brought promptly after the rejection, which it was not.
18. Quite apart from these points, however, I consider that the contention that the first application should be treated as valid is unfounded. I assume, without deciding, that on an application for judicial review such as this, as opposed to a statutory appeal as in Basnet, the burden lies on the Defendant to show that the initial application was invalid. Even on that assumption, however, she has discharged that burden here. In this case, the UKBA letter of 25 May 2012 indicated that the reason for the invalidity of the initial application was that the old (pre 6 April 2012) fee had been tendered. This was not disputed by the Claimant in her reply of 7 June 2012. On the contrary, in that letter the Claimant stated that the old version of the FLR(M) application had originally been submitted; that the Claimant had not been aware of the changes; and that the correct version of the form was now returned with a cheque for £561. Furthermore, this has not been a matter in issue. In the Detailed Statement attached to the Claim Form, it was accepted that the proper fee had not been paid (see Background, second paragraph; Grounds, paragraph 9). If the appropriate fee does not accompany an application, the application is invalid: Immigration and Nationality (Fees) Regulations 2012 (SI 2012 No 971), reg. 7. In the circumstances I consider that the material before the Court establishes that the original application was invalid.

The relevant terms of Paragraph 284 Immigration Rules

19. The argument made here on behalf of the Claimant was that, even assuming that the first application was invalid, the second application was made within a period of less than 28 days after the Claimant's leave to remain had expired, and that such a period of overstaying was to be disregarded. Mr Kannangara referred to the fact that Paragraph 284 was amended, as to paragraph 284(iv) by HC 1039, and as to paragraph 284(i) by HC 1138. He argued, further, that the Defendant's letter of 30 January 2015 constituted a new decision on the Claimant's application, superseding that of 5 February 2013, and that, as such, it had to be taken in accordance with Paragraph 284 as amended by HC 1039 and HC 1138, which meant that the period of overstaying of less than 28 days should have been disregarded, and her application treated as being made in time.
20. In my judgment, this contention fails. The letter of 30 January 2015 was not a new decision on the application which withdrew or replaced the original decision of 5 February 2013. Instead, it was a maintenance of the original decision. On that basis, the terms of Paragraph 284 Immigration Rules, both at the time of the application, and at the time of the decision in February 2013, were as follows:

"284 The requirements for an extension of stay as a spouse or civil partner of a person present and settled in the United Kingdom are that:

(i) The applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules, other than where as a result of that leave he would not have been in the United Kingdom beyond 6 months from the date on which he was admitted to the United Kingdom on this occasion in accordance with the rules, unless [irrelevant exceptions]; and

…

(iv) the applicant had not remained in breach of the immigration rules…"

21. Given that the Claimant's valid application was made at time when she did not have leave to enter or remain, and had remained in breach of the immigration rules, Paragraph 286 provided that an extension of stay should be refused.
22. The amendment to add a 28 day grace period in Paragraph 284(iv) came into effect only in respect of applications decided on or after 6 April 2013. The Defendant's decision of February 2013 cannot be impugned by reference to this change to the Rules which occurred only after it had been made.

The residual discretion to ignore non-compliance with 284(i): Forrester

23. It was argued for the Claimant that the Defendant's failure to exercise her discretion in the Claimant's favour so as to ignore the fact that the Claimant's application had been made at a time when her leave to remain had – recently – expired, was unlawful. Reference was made to the decision in R (Forrester) v SSHD [2008] EWHC 2307 (Admin), and it was contended that here, as in Forrester, the decision not to exercise a discretion to grant leave to remain notwithstanding that a valid application was not made until after the Claimant's leave had expired was "wholly perverse".
24. In my judgment Forrester provides for no principle which determines the result in this case. In particular, its facts are clearly distinguishable from those here. In Forrester, the sole reason why Ms Forrester's resubmitted application was refused was that it was made when her leave to remain had expired: paragraphs [5-6]. In the present case, the Defendant relied, and relies, on other matters as well. These include: that the Claimant's presence in the United Kingdom is not conducive to the public good because she has an unspent conviction for assault occasioning actual bodily harm; that it has not been shown that there are insurmountable obstacles that would prevent her from continuing her family life outside the UK; that it cannot be shown that she has no social or cultural ties to her home country; that removal would not breach her Article 8 rights; and that the case is not a compelling one for the exercise of her overriding discretion.
25. Given that the Defendant has given consideration to a range of matters, her decision not to overlook or disregard non-compliance with Paragraph 284(i) is not one which can be described as perverse or irrational, or such as no reasonable Secretary of State could reach. It is a matter on which reasonable minds could differ, but that is not a basis on which this Court can interfere with it.

Appendix FM and Paragraph 276 ADE.

26. The decision of 5 February 2013, and the supplemental letter of 30 January 2015, gave consideration to the Claimant's family and private life by reference to Appendix FM and Paragraph 276ADE respectively. The Claimant contended in opening that this was wrong, because her application was made before 9 July 2012, and that the new rules introduced by HC 194 took effect only on 9 July 2012 and did not apply to applications made before that date.
27. It is to be noted that Mr Kannangara did not suggest that the Claimant would have qualified for leave to remain under Appendix FM if her application had been made under that Appendix. I consider that he was right not to make such a suggestion. While it is the case that Appendix FM includes, at Paragraph E-LTRP 2.2, a stipulation that "the applicant must not be in the UK … in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less)", this is not a stand alone provision. An applicant under Appendix FM would have to meet a number of other requirements under E-LTRP 1.2 to 4.2, including financial and English language requirements, which there has been no evidence that the Claimant does meet.
28. The issue instead is whether the Defendant, having decided that the Claimant did not meet the requirements of Part 8 of the Immigration Rules, was entitled to take Appendix FM and paragraphs 276ADE to 276DH into account in considering the Article 8 aspects of the Claimant's application.
29. The issue of the relevance of the new rules introduced by HC 194 to an application for leave made prior to 9 July 2012 but decided later has been the subject of no fewer than three Court of Appeal decisions, of which the latest, Singh v SSHD; Khalid v SSHD [2015] EWCA Civ 74, was handed down on the very morning on which the present case was argued.
30. The decision in Singh v SSHD; Khalid v SSHD was summarised by Underhill LJ in paragraph [56] as follows:

"(1) When HC first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edghill, "the implementation provision" [in HC 194] displaces the usual Odelola principle.

(2) But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE-276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012."

31. As the present decision was not made within the two-month window between July and September 2012, identified by Underhill LJ, the Defendant was entitled to take the new Rules into account in reaching her decision in the present case, notwithstanding that the application had been made prior to 9 July 2012.

The consideration of Paragraph 322(5)

32. Mr Kannangara contends that the relevant provision of the Immigration Rules dealing with the approach to be adopted to a case where the applicant has a criminal conviction in the UK is Paragraph 322(5). He contends that the exercise of discretion under Paragraph 322(5) to refuse leave to remain on the basis of the Claimant's previous conviction is unlawful. He also contends that, if and insofar as Section S-LTR of Appendix FM of the new Rules was applicable, a refusal of leave to remain on grounds of suitability under S-LTR 1.6 was unlawful for the same reasons.
33. It was common ground before me that the Claimant's conviction was not one to be treated as falling within sub-paragraphs 1C(i) to (iv) of Paragraph 322 (or S-LTR 1.3 or 1.4). The question to be considered was whether the "undesirability" criterion of Paragraph 322(5) (or S-LTR 1.6) applied.
34. It was submitted for the Claimant that for the Defendant, now, to rely on the previous conviction to determine that it was undesirable for her to remain in the United Kingdom was not rational. Leave to remain had been granted in May 2010, at a time when she already had the conviction; and she has had no subsequent convictions. Furthermore, the conviction was one which was not which had involved an immediate custodial sentence, and no part of her suspended sentence was ever activated.
35. These are cogent points, but I cannot conclude that the Defendant has acted perversely or irrationally. The offence of which the Claimant was convicted was one of some seriousness, and was an offence of violence. Furthermore, the Defendant had to make her decision on the basis of the material before her. The Claimant has not submitted to the Defendant any detailed reasons as to why it is appropriate for her to remain notwithstanding the conviction. As the supplementary letter of 30 January 2015 states, the Defendant's decision that the conviction makes it undesirable to allow the Claimant to remain in the UK was made "in the absence of any evidence to the contrary". In the circumstances, I consider that the Court is being asked simply to disagree with the Defendant's decision in relation to the issue of suitability, and that it has not been shown that that decision is outside the bounds of the rational.
36. I should refer to one further point. Mr Kannangara raised for the first time, in the Skeleton Argument served the day before the hearing, that the Defendant had failed to comply with policy guidance (Guidance – General grounds for refusal Section 4) in the way in which the decision as to paragraph 322(5) was made. Mr Malik submitted that the application for judicial review had not previously been made on this basis, and that it was unfair for this to be suggested at this stage. Had it been raised earlier, there could have been an investigation, for example by reference to case notes. He submitted further that it could not be inferred that the policy had not been followed: decision-makers are not required to identify all the matters which they have taken into account.
37. In my judgment, Mr Malik is correct as to this matter. If a challenge relating to non-compliance with the policy guidance was to have been made, proper notice to that effect should have been given. I am not able to infer any material non-compliance simply on the basis of the decision made in this case.

Conclusion

38. For these reasons the application for judicial review fails and is dismissed.