Shahjahan, R (on the application of) v Secretary of State for the Home Department

LORD JUSTICE LONGMORE: This is a renewed application for permission to appeal which, as Ms Akther says in her concise and well structured argument, does raise a short point or perhaps two short points, but I fear that I do not think that on the facts of this case that there is any error of law in the Home Secretary's disposition of the case or the way that it has been dealt with by the Tribunals.

The position is that the Applicant, Mr Mohammed Shahjahan, who was born probably in September 1988, entered the United Kingdom in 1999 aged about 10. There was some suggestion that he may have been trafficked. Anyway, he did come as a child. The facilitators who encouraged that were in fact dealt with by the criminal courts.

In November 2000 there were removal directions, but he made a human rights application which was in due course refused by the Secretary of State. That was his first application. Appeal papers were filed on his behalf, but the appeal was never proceeded with.

He seems to have disappeared from the radar until October 2006 when he was granted temporary admission, presumably pursuant to a second application made by him or on his behalf with conditions of reporting. That worked until April 2008 when he failed to report and he was listed as an absconder.

In January 2009 he made what would now be a third application to remain outside the rules and on Article 8 grounds. That was refused on 30 September 2010.

Then again he seems to have disappeared from the radar until in December 2013 a further, now the fourth, application for leave to remain was made and refused on 29 January 2014. In November 2014 he appears to have been arrested, as I understand it, under the Terrorism Act 2006, but nothing more was heard of that. But he did prepare papers for an appeal from that fourth refusal, but the First-tier Tribunal held that no appealable decision had been made.

There was then a fifth application with new papers put before the Home Secretary and it is that response to the fifth application, which was also refused, that is the subject matter of these proceedings.

On 13 March the Secretary of State made her decision, which was that there was no family life on which the Applicant could rely, that there was private life on which he could in theory rely, but under rule 276ADE 20 years' residence was required. He had only been here 16 years and should be returned unless there were very significant obstacles to his integration, which the Secretary of State decided that there were not, and there was nothing particularly exceptional in this case to justify permission outside the rules pursuant to Article 8. The Secretary of State proceeded to certify the claim to be unfounded under section 92.

It is in that situation that applications for judicial review were made. The Upper Tribunal refused that on the papers. That was renewed at an oral hearing when it was again refused. There is now an appeal to this court, a stay on removal having been ordered by Jackson LJ pending the time taken for the permission in this court to be sought owing to our very long lists. That, of course, has taken a considerable amount of time.

The grounds of appeal are two. Firstly, that there was no fair assessment by either the Secretary of State or the Upper Tribunal of the question of a very significant obstacles to integration or secondly, that there were exceptional circumstances outside the rules because of the length of time spent in the United Kingdom.

As Ms Akther has submitted to me, how can 16 years count for nothing? She further submits that there must be an arguable case under rule 276 or Article 8. It does not matter which. She also points out there has been what is sometimes referred to as a near miss under 276ADE(v) which is a provision about having spent at least half of his life living continuously in the UK if he is under 25 and the application was made when he was only just over 25.

Those matters were all considered by the Upper Tribunal. This is now the third determination of whether or not there is an arguable case. I fear there just is not. There is no argument that there are insurmountable obstacles to his returning and integrating himself. One understands of course it will mean uprooting an applicant who has been here for 16 years, but the requirements of immigration control are set out in the rules and the decisions of this court. It seems to me a case where the Secretary of State was clearly justified in certifying the case as unfounded.

This application will have to be dismissed. The stay imposed by Jackson LJ will be now removed.