Tribunal decisions

The decision

UTIJR6

JR/727/2017

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review Decision Notice

The Queen on the application of

PARINDA MAHA SINGH
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

Upper Tribunal Judge Finch on 26 November 2018

Application for judicial review: substantive decision
Having considered all documents lodged and having heard Mr. S. Karim of counsel, instructed by AWS Solicitors on behalf of the Applicant, and Mr J. Holborn of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 26 November 2018.
Decision: the application for judicial review is refused

THE HISTORY OF THE APPLICATION FOR JUDICIAL REVIEW
1. The Applicant is a national of Mauritius. She had leave to remain in the United Kingdom as a student from 4 September 2007 until 15 September 2015. On that same day she applied for indefinite leave to remain outside the Immigration Rules. Her application was refused on 19 January 2016 and she appealed. Her appeal was dismissed and she sought permission to appeal to the Upper Tribunal. Permission to appeal was refused by Upper Tribunal Judge King on 7 July 2017 and she became appeal rights exhausted on that same day.
2. She applied for further leave to remain on 14 July 2017 and on 9 August 2017, she varied her application to one for indefinite leave to remain. Her application was refused on 15 December 2017 and the Respondent decided not to treat her human rights claim as a fresh claim.
3. The Applicant lodged her claim for judicial review on 30 January 2018 and the Respondent filed his acknowledgment of service and summary grounds of defence on 20 February 2018. Upper Tribunal Judge Kekic refused her permission on the papers on 1 June 2018 but on 9 August 2018 Upper Tribunal Judge Smith granted her permission after an oral hearing.
4. On 13 September 2018, the Respondent was granted a short extension of time until 24 September 2018 to file and serve his detailed grounds of defence and on 11 October 2018 Upper Tribunal Judge McWilliam vacated the hearing set down for 19 October 2018 and listed the claim to be heard with Md Azizul Islam v Secretary of State for the Home Department (JR/2443/2018), which raised similar points of law.
THE SUBSTANTIVE HEARING
5. The Applicant filed a bundle for the hearing on 10 October 2018 and a bundle of authorities on 23 November 2018. The Respondent's detailed ground of defence were served on 19 October 2018 and the Applicant filed and served her skeleton argument on 9 November 2018. The Respondent filed and served his skeleton argument on 23 November 2018. At the start of the hearing, counsel for the Applicant stated that the Applicant's fourth ground of claim was effectively subsumed by grounds 2 and 3 and noted that the Respondent had accepted that this was the case in paragraph 4 of his skeleton argument.
THE SUBSTANTIVE DECISION
GROUND ONE
6. In paragraphs 41 - 46 of her initial grounds of claim, the Applicant submitted that she had never previously made a human rights claim. However, in the skeleton argument and at the start of the hearing, counsel for the Applicant submitted that paragraph 353 of the Immigration Rules had no application in her case, as she had not made further submissions but had made a formal application for leave. He noted that paragraph 353 of the Immigration Rules refers to "submissions" as opposed to "applications" and states that:
"Fresh claims
When a human-rights?claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection".
7. This was not a ground which had been advanced in the written grounds of claim and Counsel for the Respondent submitted that, if the Applicant wished to pursue this alternative ground, she needed to apply to amend her grounds. He also submitted that the Respondent would also require an adjournment in order to take instructions and prepare a response and that, therefore, the hearing would have to be vacated. I indicated that, if the Applicant wished to apply to amend her grounds, it would be necessary for an adjournment to be granted.
8. Counsel for the Applicant asked for time to take instructions from the Applicant and returned and informed the Tribunal that she did not wish to apply to amend her grounds to rely on this further ground.
GROUND TWO
9. When granting permission Upper Tribunal Judge Smith found that it was arguable that paragraph 276B, read with paragraph 39E of the Immigration Rules, requires the Respondent to disregard the fact that the Applicant overstayed following her application made within 14 days of the expiry of her section 3C leave.
10. Paragraph 276B of the Immigration Rules states that:
"The requirements to be met by an applicant for indefinite leave to remain on the grounds of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom"
?
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where -
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied".
12. Paragraph 276A of the Immigration Rules states that:
"For the purposes of paragraphs 276B?
(a) 'continuous residence' means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time".
(b) 'lawful residence' means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain".
13. Paragraph 39E of the Immigration Rules states that:
"This paragraph applies where:
(1) the application was made within 14 days of the applicant's leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971?"
14. Counsel for the Applicant did not accept that it was necessary for the Upper Tribunal to follow the decision reached by the Honourable Mr. Justice Sweeney in The Queen on the application of Juned Ahmed v Secretary of State for the Home Department JR/4184/2017. I accept that I am not bound by this decision but it is clearly persuasive and I have treated it as such.
15. Counsel for the Applicant submitted that, when paragraph 39E of the Immigration Rules was read with paragraph 276B(v) of the Rules, any period of overstaying should be disregarded if the Applicant had made a further application for leave within 14 days. Therefore, as the Applicant had made an application, which was subsequently varied to one for indefinite leave, within 14 days of her section 3C leave expiring, her period of overstaying from 7 July 2017 should be disregarded and it should be accepted that she had accrued more than ten years continuous lawful residence for the purposes of paragraph 276B of the Immigration Rules.
16. He also relied on the fact that paragraph 276A of the Immigration Rules permits an absence of up to six months from the United Kingdom within the continuous ten-year period. Counsel for the Applicant also referred to page 17 of the Respondent's policy on Long residence, where it was said that a period of overstaying was permitted before an applicant actually left the United Kingdom if he applied for entry clearance within the permitted time period of 14 or 28 days from the date that his previous leave had expired.
17. However, this example was not on all fours with the present Applicant's circumstances. She had not left the United Kingdom between different periods of lawful residence and had not applied for entry clearance within a relevant 14 or 28- day period. Instead, she was relying on a period of overstaying at the end of her period of continuous lawful residence. In addition, as submitted by counsel for the Respondent, at no time could she show that she had a continuous period of lawful residence which extended for ten years, which had been punctuated by a period abroad or short period of overstaying.
18. Mr. Justice Sweeney considered such a scenario in Ahmed and concluded in paragraph 75(2) of his judgment that:
"It is obvious from the structure of paragraph 276B, read in conjunction with paragraph 276D, that paragraph 276(v) is a free-standing requirement additional to sub-paragraph (i)(a) and consistent with the general amendment of the Immigration Rules to the effect that applications for leave to remain by persons who had overstayed for more than 28 days will be refused on that ground".
19. Counsel for the Applicant relied on the fact that Mr. Justice Sweeney had not explicitly referred to paragraph 39E of the Immigration Rules. However, giving this paragraph its plain and ordinary meaning, it cannot be said to have the capability of creating leave to remain for the Applicant when she had no other entitlement to such leave.
20. It also has to be applied in the context of paragraph 276B(v), which is just one of five separate requirements which have to be met before a person becomes entitled to indefinite leave to remain. The principle requirement in paragraph 276B(v) is that an applicant for indefinite leave must not be in the United Kingdom in breach of Immigration Laws. This requirement is modified to permit short periods of overstaying. Nothing in the sub-paragraph indicates that this modification creates a further period of lawful leave.
21. Furthermore, as noted by Mr. Justice Sweeney in paragraph 47 of his judgment, the definition of "lawful residence", contained in paragraph 276A(b) of the Immigration Rules, makes it clear that, to be lawful, continuous residence must be pursuant to existing leave to enter or remain or in certain circumstances be as a result of a grant of temporary admission or an exemption from immigration control.
22. For all of these reasons, I find that the decision that the Applicant was not entitled to indefinite leave to remain under the Immigration Rules was not irrational or unlawful.
23. However, counsel for the Applicant also submitted, that even if it could not be established that the Applicant was entitled to indefinite leave to remain within the Immigration Rules, it was unreasonable to find that there was no realistic prospect of him succeeding outside the Immigration Rules before a First-tier Tribunal Judge. This was because the Respondent had a discretion to grant indefinite leave to remain outside the Immigration Rules.
24. He relied on the Respondent's policy guidance on Long Residence Version 15.0, which states that:
"Where an out of time application is submitted on or after 24 November 2016, you must consider whether to exercise discretion in line with paragraph 39E of the immigration rules".
25. In his refusal letter, the Respondent had accepted that the Applicant had been lawfully resident in the United Kingdom for a period of 9 years and ten months.
26. When exercising his discretion, he was also bound to apply paragraph 353 of the Immigration Rules and to consider the decision reached by First-tier Tribunal Judge Phillips in which he made a number of adverse credibility findings in relation to the account provided by the Applicant at page 11 of his decision. In particular, he found that the Applicant was not at serious risk of harm in Mauritius and that there were no insurmountable obstacles to her continuing her family and private life there. He also found that there were no exceptional circumstances which would justify a grant of leave outside the Immigration Rules.
27. The Respondent took into account these findings and the subsequent decision by Upper Tribunal Judge King, when he refused the Applicant permission to appeal, when considering whether the Applicant had made a fresh claim. The Applicant's grounds of claim do not challenge the substance of the fresh claim decision.
28. At page 3 of his decision the Respondent also gave detailed consideration to any possible exceptional circumstances which could have led to him to decide to exercise his discretion in favour of the Applicant. When doing so, he explicitly found that the mere length of the Applicant's residence in the United Kingdom was not sufficiently compelling to justify allowing her to remain in the United Kingdom.
29. Counsel for the Applicant made a bare assertion that discretion should have been exercised in line with paragraph 39E of the Immigration Rules. However, the Applicant was not refused leave because of her period of overstaying. She was refused indefinite leave to remain as she had not accrued ten years continuous lawful residence in the United Kingdom.
30. The Applicant's grounds do not identify any error of law in her decision not to grant indefinite leave to remain outside the Immigration Rules which would have rendered his decision irrational or unlawful, even applying the "somewhat modest test" articulated by Lord Justice Buxton in paragraphs 6 and 7 of WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
31. Counsel for the Applicant also sought to rely on the GCID Case Record Sheet relating to JR/2443/2018. However, this was not evidence which was before the Respondent when he reached his decision in the Applicant's case and, therefore, I cannot take it into account.
32. For the reasons given above I also find that the Guidance referred to in paragraph 16 above was not capable of giving rise to a fresh claim for the purposes of paragraph 353 of the Immigration Rules.
Order
(1) The Applicant's claim is refused.
Permission to appeal to the Court of Appeal
(2) I refuse permission to appeal to the Court of Appeal because there is no merit in the grounds of claim or in the oral submissions made at the oral hearing on behalf of the Applicant.
Costs
(3) The Applicant do pay the Respondent's costs to be assessed if not agreed, subject to any submissions in writing to be made within 14 days of service of this decision.

Nadine Finch
Signed:

Upper Tribunal Judge Finch

Dated: 4 December 2018

Applicant's solicitors:
Respondent's solicitors:
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Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 7 Days of the date the Tribunal's decision on permission to appeal was given (Civil Procedure Rules Practice Direction 52D 3.3(2)).