Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
JR/1743/2018

Field House,
Breams Buildings
London
EC4A 1WR

2 May 2019

The QUEEN
(ON The application OF)
sEMAL rANI
Applicant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

THE HON. MR JUSTICE LANE

UPPER TRIBUNAL JUDGE pitt

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Mr A Badar, instructed by Connaughts Solicitors appeared on behalf of the Applicant.

Mr Z Malik, instructed by the Government Legal Department appeared on behalf of the Respondent.

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ON AN APPLICATION FOR JUDICIAL REVIEW

APPROVED JUDGMENT
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JUDGE pitt:
1. This application is brought against the Respondent's decision dated 22 December 2017 which rejected Article 8 ECHR submissions because the Applicant had not paid a fee or used a prescribed application form.
2. The background to this matter is that Mrs Rani, a citizen of India, born on 13 November 1982, came to the UK on 20 January 2011 with leave to enter as a student. After a number of extensions of that leave, an application made on 20 February 2015 was refused on 28 August 2015. An administrative review decision dated 21 September 2015 upheld the refusal of leave. Mrs Rani has not had leave since 21 September 2015, therefore.
3. On 7 October 2015 she applied for leave to remain on family and private life grounds. She paid a fee for that application and used the prescribed application form. The application was refused on 11 June 2015.
4. On 23 May 2017, further submissions relying on Article 8 ECHR were made. In the decision under challenge, the respondent said this:
"You have asked us to consider further submissions in relation to your earlier application.
Further submissions following an earlier application on the basis of ECHR Article 8 family or private life reasons must be submitted by way of a valid application on the specified form, the FLR(FP).
?
The circumstances in which the requirement to submit a valid application will not be applied are set out in paragraph 276AO of the Immigration Rules and in paragraph GEN.1.9 of Appendix FM of those Rules.
You have not submitted a valid application and you do not fall into any of the exceptions described in those Rules. Your request to consider further submissions is therefore rejected."

5. The Applicant then sent a pre-action protocol letter to the Respondent on 5 January 2018 maintaining that "in order for a human rights application to be valid, it does not need to be on a form or have a payment. The Applicant will rely on the case of Ahsan v The Secretary of State for the Home Department [2017] EWCA Civ 2009."
6. In a letter dated 22 January 2018, the Respondent indicated that he was not in a position to provide a response to the pre-action protocol letter until 14 February 2018. However, no response was forthcoming by that date and on 8 March 2018 the Applicant issued this application. The ground of challenge was, essentially, that set out in the pre-action protocol letter, as above.
7. Permission to apply for judicial review was granted by Upper Tribunal Judge Grubb in a decision issued on 19 July 2019. His decision stated:
"The claim raises an important point. Do the Rules preclude the respondent from having to consider what, on its face, is an Art 8 claim without a paid application unless an exception in para 276AO (and Gen 1.9 of Appendix FM) applies? It is arguable, on the basis of the grounds, that even if para 276ADE does not apply, an Art 8 claim cannot be summarily dismissed simply because a paid application is not made. There is some support that it cannot in what is said in the case of Ahsan."
8. On 10 September 2018, the Respondent offered to compromise the claim. The Respondent offered to reconsider the decision of 22 December 2017 within three months and, upon the Applicant agreeing, she would be able to withdraw her claim, the Respondent paying the Applicant's reasonable costs.
9. The parties were not able to reach a settlement, however, in part because the Applicant was not clear as to whether the Respondent was proposing to reconsider whether to reject or accept the further submissions or make a decision on the merits.
10. As the parties did not reach an agreement as to settlement, the application proceeded to a hearing before Mr Justice Davis on 10 October 2018. At that hearing, the Respondent clarified that the agreement to "reconsider" the Applicant's substantive Article 8 ECHR submissions would comprise a decision on the merits, not merely a reconsideration of whether the submissions could be accepted without payment of a fee and completion of an application form.
11. In light of that clarification, Mr Justice Davis considered whether the application should be dismissed as academic but concluded, as in his order dated 10 October 2018, that where the issue might be relevance to other applicants that it should be adjourned to a further hearing to allow for service of amended grounds and amended detailed grounds of defence.
12. At the hearing before us, the parties both provided draft consent orders indicating their positions on the correct disposal of this matter. Their positions in those draft orders were so close it was not wholly clear why formal consent to a settlement had not been reached. In any event, having heard the submissions of the parties on the correct disposal of this matter, we find as follows.
13. The application is academic and is therefore dismissed. The application is academic because the Respondent has agreed (as set out in paragraph 2 of Mr Malik's skeleton argument) to reconsider his letter of 22 December 2017, to consider the Applicant's submissions made in writing on 23 May 2017 within three months, absent special circumstances and to pay the Applicant's reasonable costs, to be assessed if not agreed.
14. The application is also academic as the Respondent has clarified (as set out in paragraph 4 of his skeleton argument) that the Applicant is not required to make an application on a specified form for consideration of her submissions, is not required to pay any fee for consideration of her submissions and the Respondent proposes to make a decision on the Applicant's submissions on the merits.
15. For all of those reasons we find that the application is academic and should be dismissed.
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UTIJR6

JR/1743/2018

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review Decision Notice

The QUEEN
(ON The application OF)
sEMAL rANI
Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

THE HON. MR JUSTICE LANE

UPPER TRIBUNAL JUDGE pitt

Application for judicial review: substantive decision

Having considered all documents lodged and having heard the parties' respective representatives, Mr A Badar, of Counsel, instructed by Connaughts Solicitors, on behalf of the Applicant and Mr Z Malik, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 2 May 2019

Decision: the application for judicial review is refused

(1) The application for judicial review is dismissed for the reasons set out in the attached judgment.

Order

(2) We therefore make an Order that the judicial review application be dismissed.

Permission to appeal to the Court of Appeal

(3) No application for permission having been made, we refuse permission pursuant to rule 44(4B)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for the reason that there is no arguable error of law in the Tribunal's decision or other reason why permission should be granted.

Costs

(4) The Respondent shall pay the Applicant's reasonable costs up to and including 10 October 2018, to be assessed if not agreed. No order for costs thereafter.

Signed:
Upper Tribunal Judge Pitt

Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:

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 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).