PJ (India) v Secretary of State for the Home Department

This is a renewed application for permission to appeal the decision of Deputy Judge Lewis of the Upper Tribunal promulgated on 16 December 2013. In that determination the Upper Tribunal upheld the decision of the First-Tier Tribunal Judge Doran promulgated on 13 August 2013, dismissing the appeal of the applicant, Prem Das Janagal, against the decision of the Secretary of State for the home Department dated 15 March 2013 to remove the current applicant from the UK.

The applicant is a national of India who was born on 11 October 1954. He is therefore in what might be described as “later middle age”. He entered the UK as a visitor in 1995. He was served with form ISI151A (Notice of Removal) on 28 October 1997. Subsequently the applicant attempted to claim asylum and that claim went through the appeal system and ultimately failed. He applied for leave to remain in the UK outside the Immigration Rules on 8 May 2003. He made a further application in 13 July 2004. There was a letter that was sent by or on behalf of the applicant in 2005 trying to find out what had happened to that application, in response to a statement by those on behalf of the Secretary of State saying that the matter would have been dealt with in 13 weeks. There was no response thereafter and the matter appears to have remained dormant until the applicant made a further application for leave to remain on 5 July 2012.

The two applications were dealt with together by the Secretary of State. In a letter called “Reasons for Refusal” dated 13 March 2013 the applicant’s applications for leave to remain in the UK were rejected by reference to paragraphs 276B, 276ADE and appendix FM of the Immigration Rules.

The applicant appealed that refusal and that appeal was dismissed by the First-tier Tribunal Judge, as I have said. There was then an application, which was granted, for permission to appeal and the matter then came before the Upper Tribunal.

The FTT rejected the appeal based on the Immigration Rules and one based on Article 8. The Upper Tribunal concluded that there had been no error of law on the part of the FTT and considered that the FTT had correctly performed the appropriate balancing exercise for the purposes of Article 8.

This morning Miss Harris, on behalf of the applicant, has submitted that the Upper Tribunal was fundamentally wrong in its assessment of the exercise carried out by the FTT. She submits that in the circumstances of this case there are compelling reasons why the court should hear this appeal, and thus this case falls under the second limb of the “second appeal” requirements in the CPR.

In essence her submission is that this is a man who is now in later middle age, who has lived in the United Kingdom for 20 years, has done so as a good citizen without any kind of involvement in the criminal courts, has settled down here and has therefore a “private life” which is attached to the United Kingdom. Miss Harris relies especially upon the fact that there was such a long delay by the authorities in dealing with the applicant’s application for leave to remain made in July 2004, which was effectively not dealt with for nearly nine years. In these circumstances she relies upon the statements of Lord Bingham in his speech in EB (Kosovo) [2009] 1 AC 1159, at paragraphs 14 to 16, where Lord Bingham states that delay may well be a relevant factor in the decision-making process. In particular, Miss Harris relies upon the third reason Lord Bingham identifies, as to why delay may be a factor, namely in “reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes”. The problem with that submission is that there is nothing here to show that the system has in this case produced an unpredictable, inconsistent or unfair outcome simply by virtue of the delay.

Inevitably, one has some sympathy with an applicant such as the present one who has lived in this country and settled here peaceably for 20 years. But the fact remains that in 1997 the applicant was given notice of removal and that was and remains effective. He has been living in this country on a precarious basis ever since.

In my judgment, the strict requirements for a second appeal are not met in this case and accordingly I have to dismiss this application. I do so though whilst thanking Miss Harris for all the efforts that she has made on behalf of her client.