EL (Jamaica) v Secretary of State for the Home Department

This is a renewed application for permission to appeal the decision of the Asylum and Immigration Tribunal on a reconsideration upholding the Secretary of State’s refusal on 26 February 2004 to allow the applicant, whom I shall call EL, to remain in this country on the basis of his marriage to a person present and settled here, the application having been made under paragraph 284 of HC395.

The short facts, so far as relevant, leading to the Asylum and Immigration Tribunal’s decision and bearing on the essential issue in this application were as follows. On 20 December 2001 the applicant entered the United Kingdom lawfully as a visitor with limited leave to enter and to remain for six months; that is to say, until 20 June 2002. Before the expiry of that six-month period he, on 17 May 2002, applied for variation of leave in order to enable him to remain here as a spouse. On 26 February 2004, as I have indicated, the Secretary of State refused his application under paragraph 284 because under the law at the time of his decision the applicant had been here unlawfully after the expiry of the six-month leave and, in his view, because there were no exceptional circumstances for not directing his removal. The Secretary of State also indicated that he had had regard to Article 8 of the European Convention on Human Rights, but considered that any interference with his private or family life was, in the circumstances, justified under Article 8(2).

The Asylum and Immigration Tribunal upheld the reasoning of the Secretary of State on the paragraph 284 issue, as did Richards LJ in refusing permission to appeal on paper. This is how the Tribunal put it in paragraph 27 of its determination:

“… such a contention [that is to say by Mr Hussain] ignores the wording of paragraph 284(i) which is very specific. It makes reference to the fact that [if] the Appellant has limited leave to enter or remain other than as result of that leave, he would not have been in the United Kingdom beyond six months. It is therefore clear that what is being referred to in the leave granted as a result of the limited leave to enter as a visitor for six months, cannot be circumvented by the Appellant putting in an application for leave to remain in a different capacity in time, such that it would enable him to remain in the United Kingdom whilst that application was pending.”

However Mr Hussain, in the application he has put to this court, relies on section 3(c)(i) and section 2(a) of the Immigration Act 1971 as amended, which, as interpreted by the Asylum and Immigration Tribunal in FB and others v The Secretary of State [2006] UKIAT 00030, provides for continuation of limited leave to enter or remain pending a variation decision where an application for such a decision is made before the leave expires. The leave to which section 3C(ii)(a) of the 1971 Act refers is that in section 3C(i)(a) and (b), namely to an application “made before the leave expires”.

So, like the first two appellants in FB and others, this applicant, EL, having applied for variation before expiry of his leave, arguably at any rate meets the requirements of paragraph 284(i) as affected by those provisions in the 1971 Act. I say “arguably” because, as the Tribunal observed in paragraph 49 of its determination in FB and others v Secretary of State, there are problems with the interpretation of section 3C of the 1971 Act.

However, there is enough in Mr Hussain’s able argument and that of the interpretation of the relevant provisions in FB and others on which I am satisfied that the court should grant leave to appeal on that ground.

Mr Hussain’s second, but not a free-standing challenge to the Tribunal’s ruling, is an Article 8 claim on account of the delay, a delay which is predicated on the success of Mr Hussain’s argument on appeal under paragraph 284. It is that the prejudice to EL as a result of delay occasioned by misinterpretation or misapplication of the immigration rules is something that should weigh very heavily in his favour in the balance to be drawn, as indicated now by the House of Lords in Huang v The Secretary of State [2007] UKHL 11, between the extent of the engagement of his rights under Article 8(1) and the countervailing circumstances going to justification, including that of maintaining an effective immigration control system under Article 8(2).

If EL succeeds under paragraph 284, he will not need to have recourse to Article 8. If he fails under paragraph 284, the basis upon which Mr Hussain’s alternative argument under this head is predicated goes, because there will have been no breach by way of misinterpretation or misapplication of the immigration rules occasioning delay.

However the matter is put, the relatively modest delay, as Richards LJ described it in refusing leave on paper, is not, in my view, anywhere near a basis upon which EL could challenge the decision to refuse him leave on a balance of the degree of engagement of Article 8 in Article 8(i) and the countervailing circumstances in Article 8(ii). If the matter were to reach that stage and if EL were to fail on appeal on the paragraph 284 point, it would be open to him to raise any humanitarian concerns turning on the application of Article 8 in a further application to the Secretary of State that might be made under that provision at that time.

Accordingly, I refuse permission on the second of the two grounds that Mr Hussain has argued.