JR/09850/2016
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The decision
IAC-FH-LW-V1
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/9850/2016
Field House,
Breams Buildings
London
EC4A 1WR
22 June 2017
The QUEEN
(ON The application OF)
femintola bamidele
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Mr J Walsh, Counsel, instructed by Universe Solicitors appeared on behalf of the Applicant.
Ms E Dring, 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 a claim seeking judicial review of a decision of the Secretary of State given on various dates, but the one that matters is one which was dated 1 September so far as the covering letter was concerned, but the decision appears to have been made on 10 August. There was another decision in almost exactly the same terms made on 11 August of 2016. Since then there have been two further decisions, one in January 2017 and one in March, each in virtually identical terms which are attempts to fill gaps, or rather gaps which are thought to exist by the respondent in the previous refusal decisions. However, it is accepted they do not assist because the issue is whether the applicant should have been given a right of appeal against the relevant decision. If he should have been given such a right on the basis of the decision then made, any subsequent decision which is a possible attempt to cure any defect cannot avail the Secretary of State, for obvious reasons.
2. The applicant himself is a citizen of Nigeria. He claims to have entered the United Kingdom in December 1989 but he has in fact been here unlawfully ever since and there is no record of his entry. He has produced material which includes payslips dating back to 1993. The relevance of those early dates of course is that in accordance with the Rules as they now are, continuous residence in this country for twenty years or more does bring the individual within the scope of what has been regarded as an appropriate length of stay to engage Article 8. The Rule itself does not refer specifically to Article 8, but the amendments made in July 2012 were designed to show what the Government thought was the appropriate approach to Article 8 claims. As has been made clear and as had to be, of course, accepted, that is not the full picture because it is not for the Government but for the courts to decide whether an Article 8 claim is or is not valid, and accordingly the Secretary of State has to consider any claim if it fails under the Rules exceptionally outside the Rules, and that is done routinely in such cases.
3. Prior to the 2014 Act the rights of appeal were not engaged by a decision which was based on a refusal of a human rights claim unless the decision in question was one which meant that there had to be a removal from this country. It was the prospect of removal that triggered the right of appeal. That was changed by the amendments to Section 82 when the rights of appeal were abolished in relation to a very large number of applications, but were granted in relation to asylum, humanitarian protection and human rights claims, and Section 82(1)(b) provides a person may appeal to the Tribunal where the Secretary of State has decided to refuse a human rights claim made by him, and a human rights claim is, as is perhaps obvious, one which engages the Human Rights Convention.
4. This applicant has a long history of making applications to endeavour to achieve his right to stay in this country. In August of 2006 he applied for leave to remain under the long residency fourteen year Rule. That was rejected and he tried again, without success. In 2009 he was served with a IS151A. He lodged an appeal against the refusal back in 2006, but that was dismissed. He did not leave the country and in March 2012 he applied for leave to remain under Article 8. This was refused with no right of appeal, and of course at that time there was no right of appeal because the refusal of leave to remain did not carry with it a specific direction that he be removed. He then, in 2013, applied for leave to remain outside the Rules and that was refused, was reconsidered in early 2014 and by then, of course, or by later 2014, a right of appeal was provided, as I have indicated, and he exercised that appeal. The appeal was dismissed and his attempt to go to the Court of Appeal was refused so that in March of 2016 his appeal rights were exhausted. He tried again by lodging an application for leave to remain, this time under the family private life ten year Rule. He did not pay the fees and that was rejected, and further applications were made in June and July. They led to the refusal letters. I say letters because, as I have indicated, there were two, both reflecting decisions on 10 and 11 August. Quite why the Secretary of State thought it necessary to produce two decision letters is far from clear and was totally unnecessary. However, since they are both in virtually identical terms it has been convenient simply to refer to the one that came with the covering letter of 1 September.
5. As is perhaps obvious, the applicant having made a number of claims and attempts to remain here under the Human Rights Convention, the question of fresh claim was material. That stems from paragraph 353 of the Immigration Rules which provides, so far as material, and I quote:-
"When a human rights or protection 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."
6. It was accepted, as indeed was the case, that the fresh application made in March and in the summer of 2016 did contain additional material, in particular there was further evidence relating to the length of time that the applicant had been in this country. His claim to that effect that his stay here had been continuous was supported, it was said, by a number of items including witness statements from individuals who knew him, been friendly with him and who stated that effectively they regularly were in contact with him during relevant years when otherwise there has been no documentary indication of his presence here. There was also additional material produced which related to his partner and children of whom he was the father. It had not been accepted in the previous applications that he was exercising any relevant rights under the Parent Rules and that there was no family life that he was exercising here.
7. There has been a certain amount of learning in relation to the approach which should be adopted insofar as the new situation was concerned (by "new situation" I mean that resulting from the amendments to Section 82 of the 2002 Act). The matter was considered by Mr Ockleton, Deputy President, sitting with Judge Dawson in the case of Secretary of State v Amuda Sheidu [2016] UKUT 000412 (IAC), and the issue there was set out in the first sentence:-
"When is a decision not to treat submissions as a fresh claim not (or not merely) a decision not to treat submissions as a fresh claim?"
Somewhat obscure, but the point that has come out of the case and is obvious, perhaps, is that if the Secretary of State does not accept that there is a valid fresh claim, then the decision that should be reached and should be reflected in any decision letter is just that, namely that the fresh claim has been rejected and therefore there is no human rights claim which exists, and that is the approach that should be made.
8. In the case of Sheidu, albeit there was a reference to 353 in the body of the decision letter, the letter was headed:-
"UK BORDERS ACT 2007
CONSIDERATION OF FURTHER SUBMISSIONS
DECISION TO REFUSE A PROTECTION CLAIM AND HUMAN RIGHTS CLAIM"
and as the Tribunal decided that spoke for itself and it was not open to the Secretary of State to deny that what she was considering was indeed a claim under human rights protection.
9. The similar point was decided by the Tribunal consisting of Mr Justice Dove and Upper Tribunal Judge Lane in a decision of The Queen (on the application of Amin Hussein), in fact it was a claim against the First-tier Tribunal, so presumably was a case which had been remitted from the High Court on the basis of a Cart claim, and essentially in that case the court decided that on the facts and on the basis of the letter it had not been accepted that there was a fresh claim and it had been made clear that there was no such claim. What perhaps is the substance of the decision is contained in paragraph 58 and this is said, and I quote:-
"The Secretary of State's letter of 26 June 2015 ... refers in various places to the applicant's 'claim', where it would plainly have been preferable to refer to his 'submissions'. Nevertheless, the first substantive paragraph of the letter refers to 'your letter of 24 June 2015 in which you made further submissions about your client's deportation from the UK'. In the circumstances, we consider that the subsequent references to a claim in the letter need to be read as referring to those submissions. Overall, we consider that the letter of 26 June, properly construed, amounts to a decision to refuse to treat the applicant's submissions as a fresh claim. Paragraph 353 is mentioned in terms in several places and the letter makes it evident that the Secretary of State has asked herself the correct questions in terms of WM (DRC) [2006] EWCA Civ 1495, applying the requisite anxious scrutiny."
10. So much depends obviously upon the proper construction of the refusal letter in a given case, and it is not difficult for the Secretary of State to get it right because all that has to be done if it is not accepted that there was in reality a fresh claim, and that aspect is indeed rejected, is to state that and then go on to consider, because reasons clearly have to be given to deal with this, whether the submissions that are made were first of all significantly different from previous material, and secondly whether they created a realistic prospect of success, because those are the two issues which become material if a 353 application is made.
11. It is therefore necessary to look to see what is the form of the decision letter in question. It starts in paragraph 3 by referring specifically to paragraph 353 and then in 4 this is said, and I quote:-
"Some points raised in your submissions dated 21 July 2016 were considered when the earlier claim was determined. They were dealt within the refusal decision letter dated 10 August 2016 and within your appeal which was dismissed 28 October 2014 (Appeal rights exhausted 07 March 2016)."
As is perhaps rather apparent the reason for the extension of appeal rights was because of an attempt to appeal to the Court of Appeal, which was turned down. Going back to paragraph 4 this is then said and this is the key sentence from the point of view of Ms Dring, and I quote:-
"The remaining points raised in your submissions, taken together with the material previously considered in the refusal decision letter and appeal determination would not have created a realistic prospect of success."
12. So far so good in that it does appear that the letter writer was engaging with the issue of fresh claim, however, paragraph 5 begins thus, and I quote:-
"You claim that your removal would be a breach of your human rights because you have established a family/private life in the United Kingdom."
It then goes on to set out the basis of the claim and to deal in detail with the matters which were material and raised in the claim. It deals with and rejects the application of the Rules. It then goes on to consider private life and whether there had been a twenty year continuance residence. It then goes on to consider under the heading "Exceptional Circumstances" whether Article 8 rights should provide for a grant of leave and that issue is considered in detail between paragraphs 27 and 39. The decision then goes on to consider whether there are other compassionate factors and states at the end at paragraphs 43 and 44:-
"43. Therefore, having considered all the circumstances of your particular case, it has been concluded that you have provided no evidence which might justify allowing you to remain here exceptionally.
44. Careful consideration has been given to all these circumstances individually and together, but for the reasons given above it is not accepted that there are exceptional circumstances in your case considered sufficiently compelling to justify allowing you to remain in the United Kingdom."
13. It is thus apparent in the form of the letter that albeit it refers to 353 at the outset and indicates that in the view of the author the additional material, it being accepted that there was additional material which had not been previously considered, would not have created a realistic prospect of success. Unfortunately, instead of dealing with and focusing on that material, the letter then goes on to a detailed consideration whether overall the claim is made out, and thus, as it seems to me, the situation is much the same as that which persuaded the Tribunal in Sheidu that it had not been decided in the letter that there was no claim. Indeed, the whole letter was drafted on the basis that there was a claim and on the basis that the claim was not one which would succeed. This was, I am afraid, a failure to deal with the matter in the appropriate manner. I have indicated what should have been done. It is to be noted that the subsequent letters in January and March 2017 do focus on the additional material to a greater extent, albeit they have their own flaws. Nonetheless, as I have said, they cannot be taken into account. It seems to me in those circumstances that this was treated as a claim based on human rights and was rejected as such, and in those circumstances, having regard to the clear wording of Section 82 as amended, there was a right of appeal to the Tribunal.
14. Accordingly, this application must succeed and I propose to declare that the applicant did have and should be granted a right of appeal to the First-tier Tribunal. There is of course a time limit normally for exercising such a right, and for obvious reasons that time has long since passed, but having regard to the need for judicial review and my decision, what I shall direct is that the time for appeal will run from today and thus an appeal must be lodged if it is to be within the relevant period which is allowed to appeal against a decision of the Secretary of State which is appealable.
15. I refuse permission for leave to appeal.
Costs
16. Detailed assessment if not agreed. ~~~~0~~~~
UTIJR6
JR/9850/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
Femintola Bamidele
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 J Walsh, of Counsel, instructed by Universe Solicitors, on behalf of the Applicant and Ms E Dring of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 22nd June 2017.
Order
(1) Application allowed for reasons set out in the attached judgment.
(2) Declaration that the applicant should have been granted a right of appeal to the first tier tribunal. The time to serve a notice to run from today.
(3) Leave to appeal refused.
(3) The defendant to pay the applicant's costs to be subject to detailed assessment if not agreed.
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/9850/2016
Field House,
Breams Buildings
London
EC4A 1WR
22 June 2017
The QUEEN
(ON The application OF)
femintola bamidele
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Mr J Walsh, Counsel, instructed by Universe Solicitors appeared on behalf of the Applicant.
Ms E Dring, 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 a claim seeking judicial review of a decision of the Secretary of State given on various dates, but the one that matters is one which was dated 1 September so far as the covering letter was concerned, but the decision appears to have been made on 10 August. There was another decision in almost exactly the same terms made on 11 August of 2016. Since then there have been two further decisions, one in January 2017 and one in March, each in virtually identical terms which are attempts to fill gaps, or rather gaps which are thought to exist by the respondent in the previous refusal decisions. However, it is accepted they do not assist because the issue is whether the applicant should have been given a right of appeal against the relevant decision. If he should have been given such a right on the basis of the decision then made, any subsequent decision which is a possible attempt to cure any defect cannot avail the Secretary of State, for obvious reasons.
2. The applicant himself is a citizen of Nigeria. He claims to have entered the United Kingdom in December 1989 but he has in fact been here unlawfully ever since and there is no record of his entry. He has produced material which includes payslips dating back to 1993. The relevance of those early dates of course is that in accordance with the Rules as they now are, continuous residence in this country for twenty years or more does bring the individual within the scope of what has been regarded as an appropriate length of stay to engage Article 8. The Rule itself does not refer specifically to Article 8, but the amendments made in July 2012 were designed to show what the Government thought was the appropriate approach to Article 8 claims. As has been made clear and as had to be, of course, accepted, that is not the full picture because it is not for the Government but for the courts to decide whether an Article 8 claim is or is not valid, and accordingly the Secretary of State has to consider any claim if it fails under the Rules exceptionally outside the Rules, and that is done routinely in such cases.
3. Prior to the 2014 Act the rights of appeal were not engaged by a decision which was based on a refusal of a human rights claim unless the decision in question was one which meant that there had to be a removal from this country. It was the prospect of removal that triggered the right of appeal. That was changed by the amendments to Section 82 when the rights of appeal were abolished in relation to a very large number of applications, but were granted in relation to asylum, humanitarian protection and human rights claims, and Section 82(1)(b) provides a person may appeal to the Tribunal where the Secretary of State has decided to refuse a human rights claim made by him, and a human rights claim is, as is perhaps obvious, one which engages the Human Rights Convention.
4. This applicant has a long history of making applications to endeavour to achieve his right to stay in this country. In August of 2006 he applied for leave to remain under the long residency fourteen year Rule. That was rejected and he tried again, without success. In 2009 he was served with a IS151A. He lodged an appeal against the refusal back in 2006, but that was dismissed. He did not leave the country and in March 2012 he applied for leave to remain under Article 8. This was refused with no right of appeal, and of course at that time there was no right of appeal because the refusal of leave to remain did not carry with it a specific direction that he be removed. He then, in 2013, applied for leave to remain outside the Rules and that was refused, was reconsidered in early 2014 and by then, of course, or by later 2014, a right of appeal was provided, as I have indicated, and he exercised that appeal. The appeal was dismissed and his attempt to go to the Court of Appeal was refused so that in March of 2016 his appeal rights were exhausted. He tried again by lodging an application for leave to remain, this time under the family private life ten year Rule. He did not pay the fees and that was rejected, and further applications were made in June and July. They led to the refusal letters. I say letters because, as I have indicated, there were two, both reflecting decisions on 10 and 11 August. Quite why the Secretary of State thought it necessary to produce two decision letters is far from clear and was totally unnecessary. However, since they are both in virtually identical terms it has been convenient simply to refer to the one that came with the covering letter of 1 September.
5. As is perhaps obvious, the applicant having made a number of claims and attempts to remain here under the Human Rights Convention, the question of fresh claim was material. That stems from paragraph 353 of the Immigration Rules which provides, so far as material, and I quote:-
"When a human rights or protection 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."
6. It was accepted, as indeed was the case, that the fresh application made in March and in the summer of 2016 did contain additional material, in particular there was further evidence relating to the length of time that the applicant had been in this country. His claim to that effect that his stay here had been continuous was supported, it was said, by a number of items including witness statements from individuals who knew him, been friendly with him and who stated that effectively they regularly were in contact with him during relevant years when otherwise there has been no documentary indication of his presence here. There was also additional material produced which related to his partner and children of whom he was the father. It had not been accepted in the previous applications that he was exercising any relevant rights under the Parent Rules and that there was no family life that he was exercising here.
7. There has been a certain amount of learning in relation to the approach which should be adopted insofar as the new situation was concerned (by "new situation" I mean that resulting from the amendments to Section 82 of the 2002 Act). The matter was considered by Mr Ockleton, Deputy President, sitting with Judge Dawson in the case of Secretary of State v Amuda Sheidu [2016] UKUT 000412 (IAC), and the issue there was set out in the first sentence:-
"When is a decision not to treat submissions as a fresh claim not (or not merely) a decision not to treat submissions as a fresh claim?"
Somewhat obscure, but the point that has come out of the case and is obvious, perhaps, is that if the Secretary of State does not accept that there is a valid fresh claim, then the decision that should be reached and should be reflected in any decision letter is just that, namely that the fresh claim has been rejected and therefore there is no human rights claim which exists, and that is the approach that should be made.
8. In the case of Sheidu, albeit there was a reference to 353 in the body of the decision letter, the letter was headed:-
"UK BORDERS ACT 2007
CONSIDERATION OF FURTHER SUBMISSIONS
DECISION TO REFUSE A PROTECTION CLAIM AND HUMAN RIGHTS CLAIM"
and as the Tribunal decided that spoke for itself and it was not open to the Secretary of State to deny that what she was considering was indeed a claim under human rights protection.
9. The similar point was decided by the Tribunal consisting of Mr Justice Dove and Upper Tribunal Judge Lane in a decision of The Queen (on the application of Amin Hussein), in fact it was a claim against the First-tier Tribunal, so presumably was a case which had been remitted from the High Court on the basis of a Cart claim, and essentially in that case the court decided that on the facts and on the basis of the letter it had not been accepted that there was a fresh claim and it had been made clear that there was no such claim. What perhaps is the substance of the decision is contained in paragraph 58 and this is said, and I quote:-
"The Secretary of State's letter of 26 June 2015 ... refers in various places to the applicant's 'claim', where it would plainly have been preferable to refer to his 'submissions'. Nevertheless, the first substantive paragraph of the letter refers to 'your letter of 24 June 2015 in which you made further submissions about your client's deportation from the UK'. In the circumstances, we consider that the subsequent references to a claim in the letter need to be read as referring to those submissions. Overall, we consider that the letter of 26 June, properly construed, amounts to a decision to refuse to treat the applicant's submissions as a fresh claim. Paragraph 353 is mentioned in terms in several places and the letter makes it evident that the Secretary of State has asked herself the correct questions in terms of WM (DRC) [2006] EWCA Civ 1495, applying the requisite anxious scrutiny."
10. So much depends obviously upon the proper construction of the refusal letter in a given case, and it is not difficult for the Secretary of State to get it right because all that has to be done if it is not accepted that there was in reality a fresh claim, and that aspect is indeed rejected, is to state that and then go on to consider, because reasons clearly have to be given to deal with this, whether the submissions that are made were first of all significantly different from previous material, and secondly whether they created a realistic prospect of success, because those are the two issues which become material if a 353 application is made.
11. It is therefore necessary to look to see what is the form of the decision letter in question. It starts in paragraph 3 by referring specifically to paragraph 353 and then in 4 this is said, and I quote:-
"Some points raised in your submissions dated 21 July 2016 were considered when the earlier claim was determined. They were dealt within the refusal decision letter dated 10 August 2016 and within your appeal which was dismissed 28 October 2014 (Appeal rights exhausted 07 March 2016)."
As is perhaps rather apparent the reason for the extension of appeal rights was because of an attempt to appeal to the Court of Appeal, which was turned down. Going back to paragraph 4 this is then said and this is the key sentence from the point of view of Ms Dring, and I quote:-
"The remaining points raised in your submissions, taken together with the material previously considered in the refusal decision letter and appeal determination would not have created a realistic prospect of success."
12. So far so good in that it does appear that the letter writer was engaging with the issue of fresh claim, however, paragraph 5 begins thus, and I quote:-
"You claim that your removal would be a breach of your human rights because you have established a family/private life in the United Kingdom."
It then goes on to set out the basis of the claim and to deal in detail with the matters which were material and raised in the claim. It deals with and rejects the application of the Rules. It then goes on to consider private life and whether there had been a twenty year continuance residence. It then goes on to consider under the heading "Exceptional Circumstances" whether Article 8 rights should provide for a grant of leave and that issue is considered in detail between paragraphs 27 and 39. The decision then goes on to consider whether there are other compassionate factors and states at the end at paragraphs 43 and 44:-
"43. Therefore, having considered all the circumstances of your particular case, it has been concluded that you have provided no evidence which might justify allowing you to remain here exceptionally.
44. Careful consideration has been given to all these circumstances individually and together, but for the reasons given above it is not accepted that there are exceptional circumstances in your case considered sufficiently compelling to justify allowing you to remain in the United Kingdom."
13. It is thus apparent in the form of the letter that albeit it refers to 353 at the outset and indicates that in the view of the author the additional material, it being accepted that there was additional material which had not been previously considered, would not have created a realistic prospect of success. Unfortunately, instead of dealing with and focusing on that material, the letter then goes on to a detailed consideration whether overall the claim is made out, and thus, as it seems to me, the situation is much the same as that which persuaded the Tribunal in Sheidu that it had not been decided in the letter that there was no claim. Indeed, the whole letter was drafted on the basis that there was a claim and on the basis that the claim was not one which would succeed. This was, I am afraid, a failure to deal with the matter in the appropriate manner. I have indicated what should have been done. It is to be noted that the subsequent letters in January and March 2017 do focus on the additional material to a greater extent, albeit they have their own flaws. Nonetheless, as I have said, they cannot be taken into account. It seems to me in those circumstances that this was treated as a claim based on human rights and was rejected as such, and in those circumstances, having regard to the clear wording of Section 82 as amended, there was a right of appeal to the Tribunal.
14. Accordingly, this application must succeed and I propose to declare that the applicant did have and should be granted a right of appeal to the First-tier Tribunal. There is of course a time limit normally for exercising such a right, and for obvious reasons that time has long since passed, but having regard to the need for judicial review and my decision, what I shall direct is that the time for appeal will run from today and thus an appeal must be lodged if it is to be within the relevant period which is allowed to appeal against a decision of the Secretary of State which is appealable.
15. I refuse permission for leave to appeal.
Costs
16. Detailed assessment if not agreed. ~~~~0~~~~
UTIJR6
JR/9850/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
Femintola Bamidele
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 J Walsh, of Counsel, instructed by Universe Solicitors, on behalf of the Applicant and Ms E Dring of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 22nd June 2017.
Order
(1) Application allowed for reasons set out in the attached judgment.
(2) Declaration that the applicant should have been granted a right of appeal to the first tier tribunal. The time to serve a notice to run from today.
(3) Leave to appeal refused.
(3) The defendant to pay the applicant's costs to be subject to detailed assessment if not agreed.
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).