JR/06138/2016
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The decision
IAC-FH-LW-V1
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/6138/2016
Field House,
Breams Buildings
London
EC4A 1WR
16 February 2017
The QUEEN
(ON The application OF)
john ehis osemota
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Mr P Corren, Counsel, instructed by Law Lane Solicitors appeared on behalf of the Applicant.
Mr W Hansen, 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 of a decision of the Secretary of State refusing the applicant's leave to remain in this country on the basis of his living with a partner. It is necessary to look at the history of this matter to some extent.
2. The applicant entered this country, he being Nigerian, as a student in September 2007. He made various applications to remain as a student and in due course, following refusal, he had his appeal allowed, and he was able to obtain a Masters Degree from the University of Southampton in December 2010. He then applied for leave as a Tier 1 (Post-Study Work) Migrant and a visa was granted, valid until 29 June 2013. He left this country the day before that. He then returned in September 2013, again as a student, he having been granted entry clearance which was valid until February 2015. He received a postgraduate Diploma in Business Administration in March 2015, but he had refusal in April of the application that he had made cover that. He then in July 2015 applied for leave to remain as a Tier 2 (General) Migrant and that was refused and so were various other applications and an application for judicial review. He has now sought leave to remain as the unmarried partner of his partner whom he met when they were both at Southampton University in 2011 and they have, it is said, formed a relationship.
3. The refusal of that by the Secretary of State which is under attack was on 22 March 2016 and it resulted in a removal direction. He had, for some reason best known to the Secretary of State, been put into custody. It is difficult to understand quite why, but it is to be noted that on a bail application his partner had offered to stand surety for him and it was clearly accepted evidence having been given both by him and his partner before the First-tier Judge that they were indeed then living together.
4. One of the problems in this case is that those advising the applicant have produced an enormous quantity of documentation which was alleged by them to show that they had been living together for two years prior to the making of the application. The original application was made in March 2015. Accordingly, it was necessary to show that they had been living together for two years before that. Of course, there had been the gap between June and September, but that would not be held against him if there had been cohabitation before that, and it is his case, now supported by evidence from his partner, that that indeed is the position. Unfortunately, the documentary evidence does not show the relevant two year period. I say the relevant two year period because in order to bring himself within the Rules he has to establish that he has been with his partner for a period of at least two years before the application was made.
5. He does have an application outside the Rules, but his presence here was at best precarious. That does not affect his family life right and it is said too that he may even have been here unlawfully at the time the application was made. I do not need to go into that because the reality is that on the face of it, if he cannot establish that he complies with the two year Rule, he has a weak Article 8 claim.
6. Unfortunately, the evidence from his partner was not put to the Secretary of State at the time that the adverse decision was made in April 2016, and the Secretary of State perfectly properly took the view that the necessary two year period had not then been established and that led her to certify the claim that was made under Section 94. On the material before her at that time, and having regard to the weakness of any claim outside the Rules, it may be that that decision was one that she was entitled to reach. Certainly, that is the submission made on her behalf by Mr Hansen. When one is considering even weak cases outside the Rules and there is clear indication of present cohabitation and that there has been living together on the documentation since at the least the beginning of August 2014, which is what the documentation establishes, then it may well be that even such a weak claim outside the Rules was not doomed to failure. Mr Hansen submits that it was doomed and draws my attention to the authority of SS (Congo) v Secretary of State for the Home Department [2016] 1 All ER of 20 July 2006.
7. The law does not show that any claim such as this outside the Rules is bound to fail. It shows, as I say, that there may be considerable obstacles. Nonetheless, where there is a clear, genuine relationship and where consideration has to be given to whether that relationship can properly be expected to be carried on outside the United Kingdom, there is an inevitable issue, particularly where there is no financial bar under the Rules to say that that application should fail, so I am afraid in some doubt as to whether it was appropriate for the Secretary of State to certify having regard to the clear evidence of an existing relationship which had been in existence for at least a period of eighteen months.
8. However, it is of course always open to the Secretary of State, and she does this regularly to issue supplementary decisions when judicial review proceedings are brought. She now has the evidence from the partner. She had at all times the evidence from the applicant and that would have had to have been rejected in order to justify the decision, so that is another reason why certification is not in the circumstances such as this appropriate, but we are dealing with human rights and the obligation upon the Secretary of State is to consider at all times whether a decision is in accordance with human rights. There is also an obligation on this Tribunal equally pursuant to Section 6 of the Human Rights Act to comply with the relevant human rights legislation. In those circumstances the view that one can only consider the material before the Secretary of State at the time a decision was made must be applied somewhat flexibly when one is considering human rights. The difficulty of course is that the Secretary of State chooses to certify and that is all that is in issue.
9. It seems to me, for the reasons that I have given, that this decision to certify was not one which was in all the circumstances a lawful decision. It was not one that the Secretary of State was entitled to reach, even on the material that was before her at the time the decision was made, but in the light of the developing evidence, bearing in mind as I say that one is concerned with human rights, in my view this decision is one which cannot stand so far as certification is concerned.
10. It is submitted by Mr Hansen that, as I have said, on the material before her, when the decision was made, it was one she was entitled to reach and therefore I should dismiss this application leaving it open to the applicant to make a fresh claim based upon the up-to-date situation. As it happens because regrettably this has taken some time to come before the court, the situation as it now is will have to be taken into account because clearly the Secretary of State is now going to have to make, in any event, a fresh decision, but in my view, for the reasons I have given the existing decision cannot stand as it is. ~~~~0~~~~
MR JUSTICE COLLINS: So, what relief do you say I should give?
MR CORREN: My Lord, the only -
MR JUSTICE COLLINS: Really the only certification is -
MR CORREN: Only the certification which we rebut as being -
MR JUSTICE COLLINS: Well, what you should do is to, that having been quashed gives you the right to appeal in country.
MR CORREN: Yes.
MR JUSTICE COLLINS: But obviously the Secretary of State will reconsider because she won't want to go along the appeal route if she takes the view now that he is entitled to stay. I mean obviously that will be a waste of everyone's time and money. But of course she can make a decision and she may come to the same decision, that's not for me to decide.
MR HANSEN: I've always understood that in these circumstances no further relief is necessary beyond quashing the -
MR JUSTICE COLLINS: No, I think that's right.
MR HANSEN: And then the Secretary of State could issue a fresh decision with the same result.
MR JUSTICE COLLINS: Well that's up to her.
MR HANSEN: But it would probably be unwise in the circumstances -
MR JUSTICE COLLINS: No, that's all the relief I think I can give you.
MR CORREN: Yes, it's just the matter in those circumstances (indecipherable) costs. There may be some arguments about costs not following the event (indecipherable) so I wonder whether (indecipherable) - make a similar -
MR JUSTICE COLLINS: Make a similar order of the last case I think because I mean I would not frankly award you costs based upon all the work that you've done in producing - or your solicitors have done in producing all this material. At the very least there may be other grounds for resisting -
MR CORREN@ I'm in Your Lordship's hands - I mean, it is a very short argument - it may be save your energy further down the line -
MR JUSTICE COLLINS: Well, no, because I think they, you haven't served a schedule and you will need that at the very least, won't you, because I can't really make any sensible decision without it, so I think I will make the same order as -
MR CORREN: 14 days
MR JUSTICE COLLINS: 14 days, 14 days, 14 days, yeah, and as I said in the other one that I have to deal with leave to appeal and I refuse it. You will have to persuade the Court of Appeal if you want to take it further, but I don't think you will. Alright, well thank you both.
UTIJR6
JR/6138/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
John Ehis Osemota
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 Corren, of Counsel, instructed by Law Lane Solicitors, on behalf of the Applicant and Mr Hansen 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) Application allowed and the decision of 22 March 2016 is quashed.
(2) The defendant must pay the applicant's costs reasonably incurred in pursuing this application to be the subject of a detailed assessment if not agreed.
Reasons
In the judgment annexed.
Signed:
The Honourable Mr Justice Collins
Dated: 16 February 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/6138/2016
Field House,
Breams Buildings
London
EC4A 1WR
16 February 2017
The QUEEN
(ON The application OF)
john ehis osemota
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Mr P Corren, Counsel, instructed by Law Lane Solicitors appeared on behalf of the Applicant.
Mr W Hansen, 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 of a decision of the Secretary of State refusing the applicant's leave to remain in this country on the basis of his living with a partner. It is necessary to look at the history of this matter to some extent.
2. The applicant entered this country, he being Nigerian, as a student in September 2007. He made various applications to remain as a student and in due course, following refusal, he had his appeal allowed, and he was able to obtain a Masters Degree from the University of Southampton in December 2010. He then applied for leave as a Tier 1 (Post-Study Work) Migrant and a visa was granted, valid until 29 June 2013. He left this country the day before that. He then returned in September 2013, again as a student, he having been granted entry clearance which was valid until February 2015. He received a postgraduate Diploma in Business Administration in March 2015, but he had refusal in April of the application that he had made cover that. He then in July 2015 applied for leave to remain as a Tier 2 (General) Migrant and that was refused and so were various other applications and an application for judicial review. He has now sought leave to remain as the unmarried partner of his partner whom he met when they were both at Southampton University in 2011 and they have, it is said, formed a relationship.
3. The refusal of that by the Secretary of State which is under attack was on 22 March 2016 and it resulted in a removal direction. He had, for some reason best known to the Secretary of State, been put into custody. It is difficult to understand quite why, but it is to be noted that on a bail application his partner had offered to stand surety for him and it was clearly accepted evidence having been given both by him and his partner before the First-tier Judge that they were indeed then living together.
4. One of the problems in this case is that those advising the applicant have produced an enormous quantity of documentation which was alleged by them to show that they had been living together for two years prior to the making of the application. The original application was made in March 2015. Accordingly, it was necessary to show that they had been living together for two years before that. Of course, there had been the gap between June and September, but that would not be held against him if there had been cohabitation before that, and it is his case, now supported by evidence from his partner, that that indeed is the position. Unfortunately, the documentary evidence does not show the relevant two year period. I say the relevant two year period because in order to bring himself within the Rules he has to establish that he has been with his partner for a period of at least two years before the application was made.
5. He does have an application outside the Rules, but his presence here was at best precarious. That does not affect his family life right and it is said too that he may even have been here unlawfully at the time the application was made. I do not need to go into that because the reality is that on the face of it, if he cannot establish that he complies with the two year Rule, he has a weak Article 8 claim.
6. Unfortunately, the evidence from his partner was not put to the Secretary of State at the time that the adverse decision was made in April 2016, and the Secretary of State perfectly properly took the view that the necessary two year period had not then been established and that led her to certify the claim that was made under Section 94. On the material before her at that time, and having regard to the weakness of any claim outside the Rules, it may be that that decision was one that she was entitled to reach. Certainly, that is the submission made on her behalf by Mr Hansen. When one is considering even weak cases outside the Rules and there is clear indication of present cohabitation and that there has been living together on the documentation since at the least the beginning of August 2014, which is what the documentation establishes, then it may well be that even such a weak claim outside the Rules was not doomed to failure. Mr Hansen submits that it was doomed and draws my attention to the authority of SS (Congo) v Secretary of State for the Home Department [2016] 1 All ER of 20 July 2006.
7. The law does not show that any claim such as this outside the Rules is bound to fail. It shows, as I say, that there may be considerable obstacles. Nonetheless, where there is a clear, genuine relationship and where consideration has to be given to whether that relationship can properly be expected to be carried on outside the United Kingdom, there is an inevitable issue, particularly where there is no financial bar under the Rules to say that that application should fail, so I am afraid in some doubt as to whether it was appropriate for the Secretary of State to certify having regard to the clear evidence of an existing relationship which had been in existence for at least a period of eighteen months.
8. However, it is of course always open to the Secretary of State, and she does this regularly to issue supplementary decisions when judicial review proceedings are brought. She now has the evidence from the partner. She had at all times the evidence from the applicant and that would have had to have been rejected in order to justify the decision, so that is another reason why certification is not in the circumstances such as this appropriate, but we are dealing with human rights and the obligation upon the Secretary of State is to consider at all times whether a decision is in accordance with human rights. There is also an obligation on this Tribunal equally pursuant to Section 6 of the Human Rights Act to comply with the relevant human rights legislation. In those circumstances the view that one can only consider the material before the Secretary of State at the time a decision was made must be applied somewhat flexibly when one is considering human rights. The difficulty of course is that the Secretary of State chooses to certify and that is all that is in issue.
9. It seems to me, for the reasons that I have given, that this decision to certify was not one which was in all the circumstances a lawful decision. It was not one that the Secretary of State was entitled to reach, even on the material that was before her at the time the decision was made, but in the light of the developing evidence, bearing in mind as I say that one is concerned with human rights, in my view this decision is one which cannot stand so far as certification is concerned.
10. It is submitted by Mr Hansen that, as I have said, on the material before her, when the decision was made, it was one she was entitled to reach and therefore I should dismiss this application leaving it open to the applicant to make a fresh claim based upon the up-to-date situation. As it happens because regrettably this has taken some time to come before the court, the situation as it now is will have to be taken into account because clearly the Secretary of State is now going to have to make, in any event, a fresh decision, but in my view, for the reasons I have given the existing decision cannot stand as it is. ~~~~0~~~~
MR JUSTICE COLLINS: So, what relief do you say I should give?
MR CORREN: My Lord, the only -
MR JUSTICE COLLINS: Really the only certification is -
MR CORREN: Only the certification which we rebut as being -
MR JUSTICE COLLINS: Well, what you should do is to, that having been quashed gives you the right to appeal in country.
MR CORREN: Yes.
MR JUSTICE COLLINS: But obviously the Secretary of State will reconsider because she won't want to go along the appeal route if she takes the view now that he is entitled to stay. I mean obviously that will be a waste of everyone's time and money. But of course she can make a decision and she may come to the same decision, that's not for me to decide.
MR HANSEN: I've always understood that in these circumstances no further relief is necessary beyond quashing the -
MR JUSTICE COLLINS: No, I think that's right.
MR HANSEN: And then the Secretary of State could issue a fresh decision with the same result.
MR JUSTICE COLLINS: Well that's up to her.
MR HANSEN: But it would probably be unwise in the circumstances -
MR JUSTICE COLLINS: No, that's all the relief I think I can give you.
MR CORREN: Yes, it's just the matter in those circumstances (indecipherable) costs. There may be some arguments about costs not following the event (indecipherable) so I wonder whether (indecipherable) - make a similar -
MR JUSTICE COLLINS: Make a similar order of the last case I think because I mean I would not frankly award you costs based upon all the work that you've done in producing - or your solicitors have done in producing all this material. At the very least there may be other grounds for resisting -
MR CORREN@ I'm in Your Lordship's hands - I mean, it is a very short argument - it may be save your energy further down the line -
MR JUSTICE COLLINS: Well, no, because I think they, you haven't served a schedule and you will need that at the very least, won't you, because I can't really make any sensible decision without it, so I think I will make the same order as -
MR CORREN: 14 days
MR JUSTICE COLLINS: 14 days, 14 days, 14 days, yeah, and as I said in the other one that I have to deal with leave to appeal and I refuse it. You will have to persuade the Court of Appeal if you want to take it further, but I don't think you will. Alright, well thank you both.
UTIJR6
JR/6138/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
John Ehis Osemota
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 Corren, of Counsel, instructed by Law Lane Solicitors, on behalf of the Applicant and Mr Hansen 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) Application allowed and the decision of 22 March 2016 is quashed.
(2) The defendant must pay the applicant's costs reasonably incurred in pursuing this application to be the subject of a detailed assessment if not agreed.
Reasons
In the judgment annexed.
Signed:
The Honourable Mr Justice Collins
Dated: 16 February 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).