Pasha, R (On the Application Of) v Secretary of State for the Home Department

1. MR JUSTICE SUPPERSTONE: The Claimant challenges the decision of the Defendant dated 11 September 2009, to refuse his application for indefinite leave to remain. Paragraph 134 of the Immigration Rules provides for indefinite leave to be granted to a work permit holder who has spent a continuous period of five years lawfully in the UK in that capacity.

2. The judicial review claim form was filed on 9 December 2009, within three months of the decision under challenge. The Claimant settled the grounds himself. His Honour Judge Anthony Thornton QC, sitting as a Deputy High Court Judge, granted permission on the papers on 18 May 2010 in relation to the "continuous period of five years lawfully in the UK" issue. He refused permission on the two grounds expressly put forward by the Claimant.

3. In the grounds of defence, it is said to be regrettable that this entirely new point was never put to the Defendant and, as a ground of challenge, it is out of time. Impliedly, the judge extended time when granting permission. He correctly formulated what is plainly the issue in these proceedings.

4. The background to this claim is as follows. The Claimant was originally granted a work permit to work for the Gym Music School for two years, from 9 July 2004 until 30 August 2006. In consequence of that grant, he was, on 14 September 2004, granted leave to remain in the UK for two years, until 14 September 2006. The residence permit inserted into his passport stated that he had limited leave to remain and that he was able to work as authorised by the Defendant. His work permit was then extended. In consequence, on 26 September 2006, his leave to remain was extended until 30 August 2011. The new residence permit inserted into his passport was in identical terms, save that the date of issue and the date of expiry were changed.

5. On 11 January 2007, compliance officers visited the school and concluded that the Claimant was in breach of his work permit, in that he was working for a different employer, he was in a job role that was not permitted and he was paid a significantly lower salary. In consequence, his work permit was revoked and his leave to remain curtailed. Both decisions were notified to him in a Notice of Immigration Decision dated 26 September 2007.

6. His employer, that is the proprietor of the school, sought judicial review of the revocation. Permission to apply for judicial review was granted by Mr Justice Mitting on 29 January 2008.

7. The Claimant, meanwhile, had sought and obtained a different job and, in compliance with the rules, submitted an application for a new work permit. This was granted on 5 March 2008 and a further residence permit was issued on 17 April 2008, giving leave to remain until 17 April 2011. The residence permit attached to the Claimant's passport contained the following handwritten annotation:

"Leave varied, to supersede previous endorsement on page 12."

8. On 17 December 2008, the judicial review claim brought by the proprietor of the school was dismissed. The challenge had become academic, due to the Claimant being granted leave to remain with another employer.

9. On 11 September 2009, the Claimant was issued with a notice refusing to grant him indefinite leave to remain, on the basis that he did not have five years' continuous lawful residence, due to the fact that his leave had been curtailed on 26 September 2007 and only granted again on 17 April 2008.

10. Mr Saini, for the Claimant, submits that two issues arise on this application. First: whether the grant of leave set out in the residence permit issued on 17 April 2008 is a variation of previous leave to remain, or an entirely separate new and unrelated grant of leave to remain. Second: if the grant of leave was new, did the Defendant consider exercising discretion in the Claimant's favour and take account of the material facts, bearing in mind the six month and 21-day gap in the Claimant's five-year continuous lawful residence when reaching the decision of 11 December 2009, refusing to grant indefinite leave to remain.

11. On the first issue, Mr Saini submits that the Claimant's leave was curtailed on 26 September 2007, but revived by implication, as a result of the grant of a variation of leave on 17 April 2008. This is so because the Defendant granted a variation, whilst in full knowledge of the Claimant's then curtailed status, and in full knowledge of the basis upon which the Claimant contended the curtailment was erroneous. The Defendant, it is said, would not have granted a variation of leave, unless the officer first withdrew or waived the curtailment before varying the revived leave. Mr Saini submits that the officer's words, "the previous leave was superseded", demonstrated that the officer exercised his judgment in granting a variation, being aware of the Claimant's circumstances; and such a grant of the variation created an expectation in the Claimant that his residence remained lawful, to the extent that he applied for indefinite leave to remain as soon as he had accumulated five years' lawful residence. Mr Saini submits that such variation of leave cannot now be conscionably rescinded or reneged several years later.

12. Mr Saini relies on the letter of 17 April 2008 which refers to an extension of stay, the endorsement on the Claimant's passport and the Defendant's electronic case record sheet that was completed at the time, from which it can be seen that this application was registered as:

"In time application -- supersede previous endorsement".

13. On behalf of the Defendant, Mr Greatorex submits, by reference to a new decision letter of the Defendant, dated 23 June 2010, that the handwritten endorsements on the Claimant's passport, made in April 2008, were written on the erroneous basis that his leave to remain had not been curtailed previously, when it had been. Therefore, the officer granting the Claimant's application for leave on 17 April 2008 assumed that the application had been submitted in time, when it had not been, due to the previous curtailment. Mr Greatorex submits this was simply an administrative error which has now been rectified by the Defendant's decision letter of 23 June 2010.

14. In my judgment, it is clear that the immigration officer proceeded in April 2008 on the basis that the Claimant had leave to remain. However, it is equally clear from the decision letter of 21 September 2007 that he did not have leave to remain, and that he was liable to be removed if he did not leave the UK voluntarily. The only reason that he was not removed was because his then employer challenged the decision to withdraw the work permit and was granted permission to do so.

15. The only question that remains is whether the immigration officer had power, in April 2008, to do what the Claimant submits he did: namely, by implication, he revoked the Claimant's curtailed leave, being fully aware of it, and then exercised her discretion and varied and extended the Claimant's revived leave to remain by granting a further residence permit that superseded the previous leave to remain. The only source of such a power that Mr Saini was able to point to was Section 3.3(a) of the Immigration Act 1971. That reads as follows:

"General Provisions for Regulation and Control".

(3) In the case of a limited leave to enter or remain in the United Kingdom,—

(a) A person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and:

(b) The limitation on and any conditions attached to a person's leave (whether imposed originally or on a variation) shall, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave."

In my judgment, that section does not assist the Claimant. At the date of the decision in April 2008, there was no leave to be varied or enlarged. The Claimant had no leave to be present in the country. That is made clear by the decision letter of 26 September 2007.

16. The Notice of Immigration Decision, sent under cover of the letter of that date to the Claimant, includes the following:

"Removal from the United Kingdom. You no longer have any right to stay in the United Kingdom and unless you inform us now of any reasons why you think you should be allowed to stay in this country, as indicated above, you must leave as soon as possible. If you do not leave the United Kingdom voluntarily, you will be removed to Pakistan."

In paragraph 4(1) of the observations that he made when granting permission, the judge said:

"The basis on which the revocation decision of 21 September 2007 was taken was sufficiently arguably erroneous and unlawful that permission to apply for judicial review had been granted. The only reason that the matter did not end with a decision was that the challenge had become academic."

That is so. However, it is clear from the judgment of Lord Carlile QC on 17 December 2008, ordering the claim for judicial review to be dismissed, that whilst there was no allegation of deception in this case, there was a strong factual basis for the revocation. Indeed the judgment of Lord Carlile confirmed that the curtailment was lawful. The application for judicial review was dismissed and the Secretary of State was awarded costs to be assessed, if not agreed.

17. In my judgment, the Claimant could not have had any expectation, legitimate or otherwise, based on the handwritten endorsement on his passport, which could have the effect of reviving a leave which had been curtailed.

18. The decision in BD Nigeria cannot assist the Claimant. In that case, as in others, there was a lawful period of absence. The "absence" in the present case was the period between the revocation of the work permit and the grant of a new work permit, during which time the Claimant did not have lawful leave to remain.

19. As for the second round of challenge, based on the exercise of discretion or failure thereof, the Defendant accepts that a discretion exists. However, the Claimant was notified of the curtailment of his leave. He made his second application at a time when he had no leave to remain, and so he was unlawfully present. I accept Mr Greatorex's submission that there can, in the circumstances, be no successful challenge to the Defendant's decision with regard to the exercise of her discretion.

20. For all these reasons, in my judgment, this claim fails.

21.

22. MR GREATOREX: My Lord, I am very grateful. I would ask for an order that the Claimant pay the Defendant's costs to be assessed, if not agreed.

23. MR JUSTICE SUPPERSTONE: Mr Saini?

24. MR SAINI: My Lord, I --

25. MR JUSTICE SUPPERSTONE: I don't think you can resist that.

26. MR SAINI: I can't.

27. MR JUSTICE SUPPERSTONE: I will make an order in those terms. Thank you both very much for your submissions.

28. MR SAINI: Thank you, my Lord.

29. MR GREATOREX: And thank you, my Lord, for hearing this case first.