Islam & Ors v the Secretary of State for the Home Department

This is the renewed application for permission to appeal against the decision of Mr George QC, sitting as a Deputy High Court Judge on 19 December 2013.

The Deputy Judge refused the claimant, Mr Tarikul Islam, and his dependants, his wife, Mrs Johora, and their son (now aged about five) permission to apply for judicial review of the failure by the Secretary of State to review her decision dated 12 December 2010 refusing their application for further leave to remain in the United Kingdom outside the Immigration Rules relying on their rights under Article 8 of the European Convention on Human Rights.

The background facts are that Mr Islam entered the UK as a student on 4 May 2002. His leave to remain as a student was extended on five occasions. The last extension expired on 31 July 2008. Shortly before then on 1 May 2008, his wife was granted leave to enter and remain as his dependant also until 31 July 2008. Mr Islam made a further application for leave on 31 July 2008 which, following a refusal, was appealed although that appeal was apparently withdrawn. He also applied for further leave on 30 September 2009, which application was refused on 15 March 2010 with no right of appeal. Before that last refusal on 31 December 2009, Mr Islam and Mrs Johora’s son was born in London. They made a further application for further leave to remain outside the Immigration Rules, again relying on their rights under Article 8, on 9 October 2010. That application was refused on 12 December 2010, again without an immigration decision being taken.

In view of the nature of the grounds now advanced, it is only necessary to refer to the parts of the refusal letter that deal with their son. The letter records his date of birth, although it records that it was in Bangladesh, whereas the skeleton argument states that it was in London, and given that Mrs Johora had been granted leave to enter and remain in May 2008, for the purposes of this application, I am prepared to assume that the Secretary of State’s letter was erroneous. I make that assumption because I believe it favours Mr Islam and Mrs Johora’s case. Indeed, it is clear from the body of the letter the child was born in London because it stated that the child was a UK born child. On page 2 of the letter in the last paragraph it is stated:

“Whilst it may be accepted that during the time you spent in the United Kingdom it may have established a family life, it is believed that any interference can be justified in the circumstances of your particular case. Your family life may have been established for some of the parts while you have been residing in the United Kingdom unlawfully in the knowledge that you and your dependants have no right to be here and may be removed at any time. There is no compelling reason why you and your dependants cannot return to Bangladesh and apply for the correct entry clearance visa to return to the United Kingdom to continue with your family life.”

The letter then states that consideration was given to five factors, the second of which is whether removal would interfere with the family life that it was accepted had been established in the United Kingdom. This part of the letter states:

“It is asserted that there will be limited interference with your private and family life as you and your dependants will be returning to Bangladesh. It is further affirmed that you are aged 28 and your spouse is aged 21. Both you and your spouse are able to relocate in Bangladesh. Your UK born child, Master Sikder Nayemur Rahman who is one-year-and-eleven-months old is considered young enough to adapt to life in Bangladesh. Any skills you and your spouse have obtained in the United Kingdom can be used to support yourselves and your child in Bangladesh. It is maintained that the family and private life you enjoyed in the United Kingdom can reasonably be expected to be enjoyed abroad as you and your dependants will be removed from the United Kingdom as a family unit.”

I observe, in passing, that this letter is full of typographical errors which I do not intend to identify. They are of the sort which a simple spell check would have identified and removed.

The letter, in a fairly standard form way, then deals with whether the interference was a permissible aim and whether it was proportionate including considering the case of Chikwamba and Beoku-Betts and then gives guidance about voluntary departure.

There is, as Mr Claire who appeared on behalf of the applicants today, observed, no reference to section 55 of the Borders Act 2009 in the decision letter. That provision provides that the Secretary of State must make arrangements for ensuring that functions in relation to immigration, asylum or nationality are discharged, having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

Following the receipt of the decision letter, in a letter erroneously dated 17 November 2010, but on the copy handed up corrected to 17 December 2010, the applicant’s solicitors, Universal Solicitors, applied for a review of the Secretary of State’s decision. The letter is headed: “Request to Review the Decision dated 12 December 2010.” It criticises the content of the refusal letter on traditional public law grounds: not paying attention to the facts; mistaking facts, disregarding the period during which Mr Islam and his family had been residing in the United Kingdom; the fact that they had no financial resources in Bangladesh; that they would have to live in degrading conditions; that they are persons of good character and have no criminal convictions; and that they have now fully adapted to the way of life in the United Kingdom and the norms and values of British society. Paragraph 7 of the letter states that:

“The first applicant [that is Mr Islam] has developed very strong emotional ties with his wife, son and friends in the UK and became an integral part of their families.”

It is then said that the Secretary of State disregarded the authorities, in particular the decision in Razgar and that in Hwang and Kashmiri and misconstrued the decision in Chikwamba. It is also said that the Secretary of State erred “during considering paragraph 395(c) of the Immigration Rules” and did not take into account the fact that the applicant is a resident of the United Kingdom and self-reliant. The last paragraph of the letter stated:

“Therefore in the interests of fair justice and legitimate expectation, we are requesting you to review your earlier decision, and grant the applicants discretionary leave to remain and allow them to continue their private life in the UK.”

In a letter dated 7 January 2001, the Secretary of State acknowledged receipt of the request for a review of the decision: It has been put in a queue, but there has, as yet, been no decision on it. The continuing failure to consider and decide whether the question will be reviewed is the basis for these judicial review proceedings which were launched on 14 February 2013.

In her acknowledgment of service, the Secretary of State stated that requests for reviews were put in a queue; that there was no policy or timeframe for a response to such requests, but that such requests are not a barrier to removal. In relation to requests for reviews received prior to 13 November 2013 when the Secretary of State introduced a policy in respect of such requests, the position is that the Secretary of State requests one such request for a review provided that the immigration application was made in the UK. The acknowledgement of service states that such requests are not paid applications for leave to remain and an outstanding request for reconsideration is not a barrier to removal. Requests for reconsideration of a decision taken by the Secretary of State are responded to as and when resources allow. There was no policy or guidance in place at the time the claimant’s reconsideration request was made as to when that request would be responded to and nor does the current policy provide a timeframe for a response.

On 15 August 2013 permission was refused on the papers and the matter came before the Deputy Judge on 19 December. I will refer to the salient parts of the judge’s reasons for refusing permission. At this stage, it suffices to say that he did refuse to give permission; that an application for permission to appeal against that decision was filed on 31 December 2013; and that the application was refused on the papers by Lloyd Jones LJ on 16 June 2014.

The grounds upon which judicial review were sought originally settled by Mr Biggs of counsel, whose skeleton argument Mr Claire adopted today, were as follows. First, the delay in reaching a conclusion on the review was so long as to be unreasonable or arguably unreasonable. By the date of the hearing before the Deputy Judge, the child was almost three-and-a-half years old and he is now nearly five. It is argued that the absence of a system for handling these cases, i.e. cases involving young children born in the United Kingdom, the position of the Secretary of State is not the same as that described in FH [2007] EWHC 1571 at 30. In that case Collins J said that the court could take into account resources and that a delay was unlikely to give rise to a successful judicial review and was usually unarguable. In this case, the argument is that there is a young child and, in view of section 55 of the 2009 Act, that is a factor for prioritising the case and an indication that it is necessary to have proper proceedings in place. That factor was effectively the second ground of review. There was also, shortly before the hearing, a third ground which was that (properly construed) the letter seeking a review amounted to further submissions pursuant to paragraph 353 of the Immigration Rules which may be a fresh claim and so the letter deserved a greater priority than a simple letter requesting a review. The judge rejected that last submission on the following grounds. First, the grounds upon which judicial review was sought did not mention paragraph 353 and no application to amend them had been made. Substantively, the letter does not suggest additional submissions about the human rights claim being advanced, but was simply a critique of the decision letter. The Deputy Judge therefore rejected the paragraph 353 argument. In his application to this court, Mr Biggs accepted that it was not a freestanding argument, but it was an indication of the sort of factor that justified a priority being given to a request such as this.

As to the delay, the Deputy Judge held that although there was no policy or inchoate policy for dealing with exceptional cases, this case involving as it did, a child, was not exceptional and it was open to the applicant and his family to apply for further leave. He, therefore, did not consider that this case fell in a different category to that considered by Collins J in FH.

As far as section 55 is concerned, the judge stated that there was no reference to section 55 in the letter requesting a review, or to the particular considerations that arose because Mr Islam and his wife had a young child, beyond mentioning the existence of the child as one of the clients and giving the date of birth.

Mr Claire made two submissions: First, that the Secretary of State failed to have regard to the duty that section 55 places on her. He argued that in dealing with the request for a review, the references to the child and his date of birth should have put her on notice that this needed to be given some priority because of the statutory duty. It was arguable (submitted Mr Claire) that the absence of any policy, the very open ended response given by the Secretary of State in the acknowledgement of service was unlawful. The second ground was the delay since 2010; has now crossed the threshold and arguably the delay in this decision causes, or arguably causes, illegality. In a sense, these two grounds are two ways of looking at the same substantive point. The real complaint is that there has been a delay in circumstances in which there is a young child and no indication has been given to the method that is to be adopted in considering applications for reviews involving children or the timeframe involved.

I have concluded that, notwithstanding the force of Mr Biggs’ written submissions and the clarity and focus of Mr Claire’s oral submissions, permission should not be given to appeal against the Deputy Judge’s decision. As far as the section 55 point is concerned, the mere failure to mention section 55 in the decision letter is not itself a ground of review. The passages from the letter which I read referring to the child showed that the decision maker was aware of the age of the child (then aged one-year-and-eleven months) and had considered his interests and whether he would adapt to life in Bangladesh. As far as the delay is concerned, I do not consider that there is anything in the facts of this case that take it outside the category of cases considered in FH. It is not exceptional for people who come to this country in order to pursue studies (as Mr Islam did) and bring their wives to have children, and having looked at the facts, in particular, the material that was not available to me before the hearing, but which Mr Claire and his instructing solicitor provided me with, I have not seen anything to revise my view. Accordingly, essentially for the same reasons as those given by the Deputy Judge, I do not consider that an arguable ground is raised in this application and it therefore is refused.