JR/03067/2016
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The decision
IAC-FH-LW-V1
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/3067/2016
Field House,
Breams Buildings
London
EC4A 1WR
16 February 2017
The QUEEN
(ON The application OF)
sayed mizanur rahman
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Mr M Biggs, Counsel, instructed by J A R Solicitors appeared on behalf of the Applicant.
Mr R Harland, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
MR JUSTICE COLLINS:
1. This is an application for judicial review to challenge the decision of the Secretary of State given on 19 December 2015 to reject and to certify a claim made by the applicant under Article 8 for leave to remain which he made on 29 August 2015. The essence of the claim when lodged was that the applicant should be given an in country right of appeal rather than have his application certified. There is a history to this which I need to set out so far as material.
2. The applicant is a national of Bangladesh. He came to this country to study, initially in May 2007. He had a very unfortunate time because a number of colleges which he attended lost their licences and he was compelled to make further applications during the time that he was here. The Secretary of State refused those applications. He appealed and his appeals were allowed, so understandably he had to a considerable extent lost faith in the Home Office and the way the Home Office had treated him. In any event, the result of all this was that he was here lawfully until his last material leave expired in 2014. The appeal decision was in his favour and so the Secretary of State knew by May 2014 that the First-tier Tribunal Judge had decided that he ought to be given further leave to remain.
3. For reasons which are not explained which show an unfortunate lack of competence in dealing in time with applications, it took the Home Office nearly a year to make any decision, and in the meantime the applicant was not able to pursue his studies because he had no leave and no college would be prepared to take him on without such leave.
4. It seems that a letter was sent in April 2015 which indicated that leave was to be granted. That letter was sent to the applicant's previous solicitors who by then were not on the record, and indeed, as I understand it, were no longer in practice. The result was that a subsequent letter dated 27 May 2015 was sent to the applicant. This was a short letter and what it said was:-
"Please find enclosed your passport along with a letter setting out your conditions of leave. These were previously sent to your Representatives A K Solicitors, however, the package was returned by the Post Office to us as your Representative did not go to the Post Office to retrieve it."
This is not surprising since they were no longer in business. Unfortunately, it seems that the accompanying letter was not with that.
5. Mr Harland submits, and has always submitted, that having received that letter it was incumbent on the applicant to make enquiries of the UKVI and see what leave he had obtained. Unfortunately, a subsequent letter was sent on 12 June 2015 and that was addressed to his new solicitors, so clearly the Home Office had received information that the new solicitors were the correct solicitors. That was a request to re-enrol his biometric information. As I say, the letter was 12 June 2015, but the material part of it is, to say the least, unfortunate, and I quote, under the heading "REQUEST TO RE-ENROL BIOMETRIC INFORMATION" this is said:-
"Thank you for providing your biometric information at Post Office - London, Poplar on 22 July 2015."
That of course is a bad start because the letter is dated 12 June 2015. It goes on:-
"I apologise for any inconvenience this may cause, but unfortunately the biometric information process was not successful. Therefore you must return to a participating Post Office branch to have your biometric information taken so that we can proceed with your application.
If you do not enrol your biometric information your application will be rejected as invalid. This will apply even if you have provided all the other relevant information, documentation and payment to validate your application."
6. That could not be clearer. It says in terms that without the biometric information the application will not be allowed and the only application to which that refers, and can refer, is the application he had made for leave to remain, an application which resulted in the favourable appeal and which the Secretary of State had not got round to deciding by then, despite chasing letters from his then solicitors.
7. It may be, as Mr Harland submits, that prudence would have dictated that further enquiries were made because of the discrepancy between the letter of 12 June and that of 27 May, but if one goes back to the letter of 27 May what it states is that it is a letter setting out "your conditions of leave". It does not actually say in terms that leave has been granted, and it may well be, and certainly could be in the light of all the correspondence, that a reasonable assumption had been made that all that that letter did was to set out what was proposed and leave could not be granted as the 12 June letter made clear until the biometric information was properly enrolled, and I am told that the applicant did take the necessary steps.
8. It was not he says until the beginning of August that he received confirmation that leave had been granted, but that leave ran from April and came to an end at the end of August, thus he had a very short time within which he could make the necessary applications to a college in order to pursue his studies, and it is his case that he was unable to achieve any progress in that regard within the very short time that was allowed. Essentially, what is submitted on his behalf is that he ought, at the very least, to have been given from the date in August some 60 days which would be the normal period which is provided where someone has been unable to pursue his education because of the loss of licence by whatever college he was then attending.
9. Mr Harland draws attention to his evidence and indeed the medical evidence that has been produced and which was to an extent relied on in the Article 8 claim that suggested that he really was not able to study at that time. There is a letter of November 2015 from the Whipps Cross University Hospital which he was apparently attending which indicated that he had not been able to work over the last five or six months because of pain that he was suffering from spondylitis and he needed to take painkillers. It is perfectly clear that he did have medical problems which had affected and were likely to continue to affect his studies, but they did not mean, he says, and I see no reason to reject this evidence on his behalf, that nonetheless he wanted to be able to study and despite his illness he reckoned that he was able to do so, and as I say, the main complaint is that he was unable to do it within the very short period which was available to him as a result of the way the Home Office had acted.
10. That the Home Office has acted in my judgment in a thoroughly unfair fashion, is undoubted. The two letters of 27 May and 12 June are entirely inconsistent and the letter of 12 June, on the face of it, makes as clear as it could be that his application had not been by then allowed. True, he could have taken steps and it is said that the UKVI would have reacted appropriately if he had taken the necessary steps. The history of this case does not mean that one can have confidence that that would indeed have occurred, but I have no doubt, as I have said, that the way that the applicant has been dealt with was not fair. Now of course fairness is something which the Home Office has boasted to be a necessary part of its immigration policy and practice and that must be right, and it seems to me quite clear that if there has been unfairness, that is something which is capable of persuading a court that the decision resulting from such unfairness is one which is not lawful. Much will depend upon the circumstances of the case, but in this case, somewhat inevitably, since there is no right of appeal against an unfair decision, the claim has been based on Article 8.
11. His Article 8 claim, so far as his ability to integrate in Bangladesh and his private life here independently of the ability to study, is very weak. He was here precariously and accordingly Section 117B applies. Nevertheless, what one has to consider is whether it would be proportionate to require him to return. It is accepted that there has been an interference with his private life and accordingly it is proper to rely, or to be able to rely on Article 8.
12. Article 8(2) provides as follows, and I quote:-
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others"
and what is relied on essentially in these cases is "necessary?..for the economic wellbeing of the country", but it has to be in accordance with the law, and if the decision is so unfair as to mean that it is not in accordance with the law, then Article 8(2) will apply to show that to refuse on the Article 8 claim would be disproportionate. It is not necessary to go into the details as to whether there are exceptional circumstances. "Exceptional" does not mean something that is totally out of the ordinary. It simply means that it is something that does not accord with the terms of the Rule, but it is incumbent upon the Secretary of State to act in a manner which is in accordance with Article 8 and so the decision must be, inter alia, in accordance with the law. That means beyond any question that to certify the claim was not lawful, and therefore the certification at the very least cannot stand.
13. It seems to me, that in the circumstances of this case matters may well go further, but all I need do, because this is the only relief essentially that is sought is to quash the certification. This means that a fresh decision is going to have to be made. It seems to me that in the light of the history that I have set out, and in the unfair way in which this applicant has been dealt with by the Home Office, the obvious course is to give him an immediate 60 day period to enable him to take the necessary steps to find a college or institution at which he can further and complete the education upon which he has spent a considerable sum of money hitherto. If, within that period he cannot find anywhere, then it is likely that any further application to remain here will fail, but I cannot dictate what the Secretary of State must do. All I can do is to say that in my judgement the Secretary of State will be in difficulty if she does not act speedily, and if she does not, in the interests of fairness and good administration, act in the way that I have suggested.
14. In those circumstances this application succeeds.~~~~0~~~~
UTIJR6
JR/3067/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
Sayed Mizanur Rahman
Applicant
v
Secretary of State for the Home Department
Respondent
Before Mr Justice Collins sitting as a Judge of the Upper Tribunal
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives, Mr Biggs, of Counsel, instructed by J A R Solicitors, on behalf of the Applicant and Mr R Harland of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 16th February 2017.
Order
(1) The decisions of the respondent are quashed both in relation to the certification under s.94 and to unfairness as set out in the judgment annexed, leave having been given to amend the grounds to include the unfairness allegations.
(2) Costs are to be dealt with following written submissions if such are made within successive periods of 14 days.
Signed:
The Honourable Mr Justice Collins
Dated: 22 June 2017
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).
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/3067/2016
Field House,
Breams Buildings
London
EC4A 1WR
16 February 2017
The QUEEN
(ON The application OF)
sayed mizanur rahman
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Mr M Biggs, Counsel, instructed by J A R Solicitors appeared on behalf of the Applicant.
Mr R Harland, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
MR JUSTICE COLLINS:
1. This is an application for judicial review to challenge the decision of the Secretary of State given on 19 December 2015 to reject and to certify a claim made by the applicant under Article 8 for leave to remain which he made on 29 August 2015. The essence of the claim when lodged was that the applicant should be given an in country right of appeal rather than have his application certified. There is a history to this which I need to set out so far as material.
2. The applicant is a national of Bangladesh. He came to this country to study, initially in May 2007. He had a very unfortunate time because a number of colleges which he attended lost their licences and he was compelled to make further applications during the time that he was here. The Secretary of State refused those applications. He appealed and his appeals were allowed, so understandably he had to a considerable extent lost faith in the Home Office and the way the Home Office had treated him. In any event, the result of all this was that he was here lawfully until his last material leave expired in 2014. The appeal decision was in his favour and so the Secretary of State knew by May 2014 that the First-tier Tribunal Judge had decided that he ought to be given further leave to remain.
3. For reasons which are not explained which show an unfortunate lack of competence in dealing in time with applications, it took the Home Office nearly a year to make any decision, and in the meantime the applicant was not able to pursue his studies because he had no leave and no college would be prepared to take him on without such leave.
4. It seems that a letter was sent in April 2015 which indicated that leave was to be granted. That letter was sent to the applicant's previous solicitors who by then were not on the record, and indeed, as I understand it, were no longer in practice. The result was that a subsequent letter dated 27 May 2015 was sent to the applicant. This was a short letter and what it said was:-
"Please find enclosed your passport along with a letter setting out your conditions of leave. These were previously sent to your Representatives A K Solicitors, however, the package was returned by the Post Office to us as your Representative did not go to the Post Office to retrieve it."
This is not surprising since they were no longer in business. Unfortunately, it seems that the accompanying letter was not with that.
5. Mr Harland submits, and has always submitted, that having received that letter it was incumbent on the applicant to make enquiries of the UKVI and see what leave he had obtained. Unfortunately, a subsequent letter was sent on 12 June 2015 and that was addressed to his new solicitors, so clearly the Home Office had received information that the new solicitors were the correct solicitors. That was a request to re-enrol his biometric information. As I say, the letter was 12 June 2015, but the material part of it is, to say the least, unfortunate, and I quote, under the heading "REQUEST TO RE-ENROL BIOMETRIC INFORMATION" this is said:-
"Thank you for providing your biometric information at Post Office - London, Poplar on 22 July 2015."
That of course is a bad start because the letter is dated 12 June 2015. It goes on:-
"I apologise for any inconvenience this may cause, but unfortunately the biometric information process was not successful. Therefore you must return to a participating Post Office branch to have your biometric information taken so that we can proceed with your application.
If you do not enrol your biometric information your application will be rejected as invalid. This will apply even if you have provided all the other relevant information, documentation and payment to validate your application."
6. That could not be clearer. It says in terms that without the biometric information the application will not be allowed and the only application to which that refers, and can refer, is the application he had made for leave to remain, an application which resulted in the favourable appeal and which the Secretary of State had not got round to deciding by then, despite chasing letters from his then solicitors.
7. It may be, as Mr Harland submits, that prudence would have dictated that further enquiries were made because of the discrepancy between the letter of 12 June and that of 27 May, but if one goes back to the letter of 27 May what it states is that it is a letter setting out "your conditions of leave". It does not actually say in terms that leave has been granted, and it may well be, and certainly could be in the light of all the correspondence, that a reasonable assumption had been made that all that that letter did was to set out what was proposed and leave could not be granted as the 12 June letter made clear until the biometric information was properly enrolled, and I am told that the applicant did take the necessary steps.
8. It was not he says until the beginning of August that he received confirmation that leave had been granted, but that leave ran from April and came to an end at the end of August, thus he had a very short time within which he could make the necessary applications to a college in order to pursue his studies, and it is his case that he was unable to achieve any progress in that regard within the very short time that was allowed. Essentially, what is submitted on his behalf is that he ought, at the very least, to have been given from the date in August some 60 days which would be the normal period which is provided where someone has been unable to pursue his education because of the loss of licence by whatever college he was then attending.
9. Mr Harland draws attention to his evidence and indeed the medical evidence that has been produced and which was to an extent relied on in the Article 8 claim that suggested that he really was not able to study at that time. There is a letter of November 2015 from the Whipps Cross University Hospital which he was apparently attending which indicated that he had not been able to work over the last five or six months because of pain that he was suffering from spondylitis and he needed to take painkillers. It is perfectly clear that he did have medical problems which had affected and were likely to continue to affect his studies, but they did not mean, he says, and I see no reason to reject this evidence on his behalf, that nonetheless he wanted to be able to study and despite his illness he reckoned that he was able to do so, and as I say, the main complaint is that he was unable to do it within the very short period which was available to him as a result of the way the Home Office had acted.
10. That the Home Office has acted in my judgment in a thoroughly unfair fashion, is undoubted. The two letters of 27 May and 12 June are entirely inconsistent and the letter of 12 June, on the face of it, makes as clear as it could be that his application had not been by then allowed. True, he could have taken steps and it is said that the UKVI would have reacted appropriately if he had taken the necessary steps. The history of this case does not mean that one can have confidence that that would indeed have occurred, but I have no doubt, as I have said, that the way that the applicant has been dealt with was not fair. Now of course fairness is something which the Home Office has boasted to be a necessary part of its immigration policy and practice and that must be right, and it seems to me quite clear that if there has been unfairness, that is something which is capable of persuading a court that the decision resulting from such unfairness is one which is not lawful. Much will depend upon the circumstances of the case, but in this case, somewhat inevitably, since there is no right of appeal against an unfair decision, the claim has been based on Article 8.
11. His Article 8 claim, so far as his ability to integrate in Bangladesh and his private life here independently of the ability to study, is very weak. He was here precariously and accordingly Section 117B applies. Nevertheless, what one has to consider is whether it would be proportionate to require him to return. It is accepted that there has been an interference with his private life and accordingly it is proper to rely, or to be able to rely on Article 8.
12. Article 8(2) provides as follows, and I quote:-
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others"
and what is relied on essentially in these cases is "necessary?..for the economic wellbeing of the country", but it has to be in accordance with the law, and if the decision is so unfair as to mean that it is not in accordance with the law, then Article 8(2) will apply to show that to refuse on the Article 8 claim would be disproportionate. It is not necessary to go into the details as to whether there are exceptional circumstances. "Exceptional" does not mean something that is totally out of the ordinary. It simply means that it is something that does not accord with the terms of the Rule, but it is incumbent upon the Secretary of State to act in a manner which is in accordance with Article 8 and so the decision must be, inter alia, in accordance with the law. That means beyond any question that to certify the claim was not lawful, and therefore the certification at the very least cannot stand.
13. It seems to me, that in the circumstances of this case matters may well go further, but all I need do, because this is the only relief essentially that is sought is to quash the certification. This means that a fresh decision is going to have to be made. It seems to me that in the light of the history that I have set out, and in the unfair way in which this applicant has been dealt with by the Home Office, the obvious course is to give him an immediate 60 day period to enable him to take the necessary steps to find a college or institution at which he can further and complete the education upon which he has spent a considerable sum of money hitherto. If, within that period he cannot find anywhere, then it is likely that any further application to remain here will fail, but I cannot dictate what the Secretary of State must do. All I can do is to say that in my judgement the Secretary of State will be in difficulty if she does not act speedily, and if she does not, in the interests of fairness and good administration, act in the way that I have suggested.
14. In those circumstances this application succeeds.~~~~0~~~~
UTIJR6
JR/3067/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
Sayed Mizanur Rahman
Applicant
v
Secretary of State for the Home Department
Respondent
Before Mr Justice Collins sitting as a Judge of the Upper Tribunal
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives, Mr Biggs, of Counsel, instructed by J A R Solicitors, on behalf of the Applicant and Mr R Harland of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 16th February 2017.
Order
(1) The decisions of the respondent are quashed both in relation to the certification under s.94 and to unfairness as set out in the judgment annexed, leave having been given to amend the grounds to include the unfairness allegations.
(2) Costs are to be dealt with following written submissions if such are made within successive periods of 14 days.
Signed:
The Honourable Mr Justice Collins
Dated: 22 June 2017
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).