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

This is the hearing of two distinct matters that are before the Court. First an application by the Defendant, the Secretary of State for the Home Department (“SSHD”) seeking the dismissal of the Claimant’s claim for judicial review, and secondly the substantive hearing of the claim for judicial review if it survives the application for dismissal. How these two matters came to be before the Court at the same time arises out of the procedural history of these proceedings which will need to be referred to in some detail.

In summary, however, and by way of introduction, the SSHD seeks the dismissal of the claim on two separate bases:

In relation to the substantive hearing for judicial review, the Claimant in his amended grounds, now seeks to challenge the new decision of the SSHD dated 11 December 2013 on three grounds:-

A consideration of the dismissal applications (and any relief from sanctions) logically precedes consideration and determination of the substantive claim for judicial review (which may or may not fall away in consequence). However Mr Zane Malik (who appeared on behalf of the Claimant) and Ms Zoe Leventhal (who appeared on behalf of the SSHD) each prayed in aid their respective views on the merits of the claim for judicial review (expressed as “strong” and “unarguable” respectively), as relevant to the exercise of my discretion on applications for dismissal/relief from sanctions, and urged upon me a consideration of the wider merits in the context of the dismissal applications, and application for relief from sanctions.

In the light of those submissions, the procedural history of this matter (which explains how these matters came to be listed together), and the fact that all matters could be considered within the court day (albeit necessitating a reserved judgment in consequence), I heard full submissions on all matters in the one hearing rather than issuing a prior ruling upon the dismissal applications and only thereafter proceeding to the substantive hearing if appropriate, a course with which counsel for each party concurred at the start of the hearing.

The Claimant is a citizen of Pakistan who was born on 1 January 1971. He first entered the UK in 2006, aged 35, on a family visit visa valid until 9 May 2007. He then returned to Pakistan in 2007, before returning to the UK on another family visit visa valid from 25 July 2007 to 25 January 2008. The Claimant did not return to Pakistan on 25 January 2008 and became an overstayer. In 2011 he met his future wife Shaheen Kauser, who was born on 15 April 1966 and is a British citizen who has lived in the UK for over ten years. On 1 March 2012 they underwent a religious marriage ceremony in Birmingham, UK. Shaheen has two adult children from her earlier marriage, Mohammad lfzal and Kasam Khan who were born respectively on 6 March 1988 and 18 April 1989, and are also British citizens living in the UK. Accordingly at the time of the SSHD’s decision of 11 December 2013 they would have been 25 and 24 respectively.

At the time of the Claimant’s marriage the Claimant’s immigration status was precarious. He had been an overstayer in the UK with no basis to remain for over 4 years, and he had made no attempt to regularise his position. On 3 April 2012 (ie a month after his marriage) the Defendant made an application for leave to remain in the UK relying on Article 8 ECHR.

Article 8, of course, provides:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The SSHD refused the Claimant’s application on 3 October 2012, with subsequent refusal letters on 18 October 2012 and 1 November 2012.

It is necessary to identify the scope of the initial application for judicial review, and to set out in detail subsequent events and how matters developed, as they are at the heart of the applications for dismissal.

On 14 February 2013 the Claimant issued his claim for judicial review. This was accordingly not made promptly or within 3 months, and as such was out of time. Accordingly, as recorded at section 7 of the Claim Form, the Claimant applied for an extension of time. As shall be seen his explanation was to be echoed down the proceedings and indeed is the same explanation proffered in due course as to why there was a failure to serve amended grounds within 21 days of the SSHD’s decision letter of 11 December 2013 (or for a further six months) - in short it was that he was “out of funds”. He stated in this regard at section 7 of the Claim Form:

“Extension of time: The decisions under challenge are dated 3 October 2012, 18 October 2012 and 1 November 2012.

Therefore, this application is slightly out-of-time. The Claimant is...privately paying and was out of funds. He was unable to secure any funding. It was therefore impossible for him to instruct his representatives. He has arranged the funds recently and gave instructions straightaway.”

As Mr Malik acknowledged at the hearing, the claim advanced in Claim Form was, and was limited to, a challenge as to the legality of the reliance of the SSHD upon the rules introduced in the new Immigration Rules (HC 194) it being asserted that “Paragraph 276ADE and Section EX1 are unlawful as being incompatible with the constitutional fundamentals of rule of law, independence of judiciary and parliamentary sovereignty... [and] for being incompatible with Article 8". It was not concerned with a challenge on the facts of the Claimant’s particular case.

In the light of the decision of Sales J in R(Nagre) v SSHD [2013] EWHC 720 Admin (“Nagre”) that claim was unarguable, and indeed in so far as decisions from 6 September 2012 are concerned (all the decisions in relation to the Claimant), any such claim is itself bound to fail in this Court post the decision of the Court of Appeal in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74, as Mr Malik accepts.

The paper application for permission came before Professor Andrew Grubb (sitting as a Deputy High Court Judge) who refused permission, and stated that the case was considered to be without merit. He drew attention to Nagre, and also to the fact that the challenge was not to the decision on the facts of the Claimant’s individual case. His Reasons for refusal were as follows:

“The Claimant could not succeed in seeking leave as a spouse under paragraph 284(i) of the Immigration Rules as he does not currently have the required leave. The Grounds only [original emphasis] challenge the defendant’s refusal of leave under Appendix FM and para 276ADE on the basis that they are unlawful (i) on constitutional grounds; and (ii) as being contrary to Art 8 of the ECHR. Both grounds, in almost identical form, were rejected by Sales J in R (Nagre) v SSHD [2013] EWHC 720 (Admin) at [4] (ground (i)) and, having given prior reasons at length, at [36] (ground (ii)). Following Nagre, the claimant’s grounds are unarguable here. The grounds do not challenge the decision on the facts of the claimant’s individual case.”

There was then a request for re-consideration at an oral hearing, the grounds being stated as, “The Court is respectfully invited to grant permission, notwithstanding the refusal on papers. The SHD’s decision is plainly unlawful on Nagre, as no independent consideration has been given to Article 8". Accordingly this raised the point that there had been no independent consideration given to Article 8 in the decision letters. At the oral hearing on 3 September 2013 Charles George QC (sitting as a Deputy High Court Judge) granted permission limited to questions as to:-

“i)

Whether there was a proper consideration of the Claimant’s Article 8 rights.

ii)

In particular, whether there was adequate consideration given to the status of the Claimant’s wife as a British citizen.”

Amongst other matters it was also ordered, in the ordinary way, that the Claimant was to submit amended grounds and any further evidence relied upon within 14 days. In the event this was overtaken by events as on the 18 September 2013 the Treasury Solicitor wrote to the Claimant’s solicitors (Malik Law Chambers) and indicated that the SSHD would agree to reconsider the Claimant’s application. It is necessary to refer to this letter and those that followed in some detail as they form what (limited) factual matrix evidence exists in relation to the Consent Order that was agreed and signed in due course, and which is of relevance to the applications for dismissal the parties being at odds as the true meaning of the Consent Order.

The letter was in the following terms:

“I am instructed that the Defendant will agree to reconsider your client’s application for leave to remain dated 3 April 2012 and issue a new decision within 3 months of sealing of the enclosed proposed consent order.

The Defendant considers that this judicial review is now academic and should be withdrawn. Accordingly I enclose a consent order for you to sign and return to me so that I can arrange for it to be filed at Court.”

I consider that it is clear from this letter, that the SSHD was indicating that she would reconsider the Claimant’s application, and would then issue a (fresh) decision (it being implicitly contemplated that this would address Article 8), as a result of which the SSHD considered that the existing claim for judicial review was academic (given that she would be reconsidering the application and so any complaint based on a failure to consider Article 8 to date would be remedied). There is nothing in this letter to suggest that the SSHD was contemplating that the existing claim for judicial review would continue and would apply in relation to any challenge to her new decision.

In a letter dated 19 September 2013 to the Treasury Solicitor the Claimant’s solicitors indicated that their instructions were “not to withdraw Judicial Review proceedings at this stage. Our client will only consider to withdraw Judicial Review proceedings if the Secretary of State agrees to grant him leave to remain and to pay his costs”. In a letter of 17 October 2013 the Treasury Solicitor made it clear that it was not simply a matter of granting the Claimant leave, but rather first reconsidering the Claimant’s application and considering whether he satisfied the requirements for a grant of leave. The Treasury Solicitor indicated that, in the spirit of compromise, the SSHD was willing to pay the Claimant’s reasonable costs. The letter concluded that it was considered that, “this judicial review is now academic and should be withdrawn”. The SSHD had accordingly maintained the stance adopted in the letter of 18 September 2013.

In a letter in response dated 18 October 2013 the Claimant’s solicitors maintained the stance that the Claimant would not “withdraw the judicial review proceedings at this present stage”, but proposed that the judicial review proceedings be stayed “for a period of three months to enable the Secretary of State to reconsider the matter and make a decision in our client’s case”. The SSHD agreed to this proposal in the Treasury Solicitors’ letter dated 24 October 2013 enclosing a revised draft consent order. This included the same paragraph 2 as was in due course to feature in the Consent Order and at paragraph 4 it provided that, “If the Claimant does not file amended grounds within 21 days of the ending of the stay, the application for permission will be treated as withdrawn.”

In an email on 25 October 2013 the Claimant’s solicitors pointed out that permission had already been granted, and proposed that paragraph 4 of the draft should be amended to read, “If the Claimant does not file amended grounds within 21 days of the ending of the stay, the application will be treated as withdrawn.” The “application” here is clearly the application for judicial review itself (and it was not suggested otherwise on behalf of the Claimant at the hearing). It is apparent from this email that the Claimant was aware of the consequences of a failure to file amended grounds within 21 days of the ending of the stay. These amendments were accepted by the SSHD in the Treasury Solicitor’s letter of 25 October 2013.

The Consent Order was signed on behalf of each of the parties on 6 November 2014 and initialed on behalf of the Court (it appears by Master Gidden) on 13 December 2013 (the “Consent Order”). It will be necessary to return to the Consent Order to construe its terms given the dispute between the parties as to its true meaning, but for present purposes it provides as follows:

“UPON the Defendant agreeing to reconsider the Claimant’s application for leave to remain dated 3 April 2012 and issue a new decision within 3 months of sealing of this consent order, absent special circumstances;

BY CONSENT, it is ordered that:-

1.

The Claimant’s application for Judicial Review be stayed for 3 months from the date this consent order is sealed.

2.

If the Claimant wishes to proceed with the application he must file Amended Grounds of Claim within 21 days of the stay coming to an end.

3.

The Defendant may file an amended Acknowledgment of Service within 21 days of receipt of the Claimant’s Amended Grounds of Claim.

4.

If the Claimant does not file amended grounds within 21 days of the ending of the stay, the application will be treated as withdrawn.

5.

Costs reserved.”

On 11 December 2013 the SSHD wrote to the Claimant (addressed to the Claimant’s previous solicitors Syeds Solicitors) with her reconsideration of the Claimant’s application for leave to remain, “under Article 8 ECHR taking into account Section 55 of the Borders Citizenship and Immigration Act 2009 and the Immigration Rules put in place on 9^th July 2012 under Appendix FM” (the “Decision Letter”), and for the reasons stated therein her refusal of the Claimant’s application for leave to remain was maintained. It will be necessary to consider the terms of the Decision Letter in more detail in due course, but it suffices to note at this point that Mr Malik rightly accepts that the SSHD’s decision in the Decision Letter was a new free-standing and separate decision in relation to which the principles in Bhatti apply.

Due to the fact that the Decision Letter has been addressed by the SSHD to the Claimant’s previous solicitors, the Decision Letter was only provided to the Claimant’s current solicitors (Malik Law Chambers) on 26 February 2014 under cover of a letter of that date from the Treasury Solicitor. That letter provided:

“I refer to the Consent Order agreed between the parties.I note that a decision has now been issued in relation to your client’s application for leave to remain. I enclose a copy for ease of reference. In the light of the decision my client considers this claim to be academic and invites your client to withdraw his application for permission to apply for judicial review.

I would be grateful if you could please confirm whether your client is willing to withdraw.”

In a letter dated 4 March 2014, the Claimant declined to withdraw the application for judicial review, the Claimant’s solicitors stating (amongst other matters):-

“We have now taken instructions from our client, and are [sic] instructions are not to withdraw Judicial Review proceedings. Our client maintains the grounds advanced in the Judicial Review claim form. We therefore invite you to file an acknowledgment of service”

Under the terms of paragraph 2 of the Consent Order, if the Claimant wishes to proceed with the application for judicial review he was to file Amended Grounds of Claim within 21 days of the stay coming to an end. The Claimant did not do so. The Treasury Solicitors accordingly wrote to the Claimant’s solicitors in the following terms in a letter of 29 April 2014:-

“I note that pursuant to the Consent Order dated 6 November 2013, if your client wished to pursue this claim, he was required to file Amended Grounds of Claim within 21 days of the stay coming to an end (ie by 3 April 2014).

The Administrative Court had confirmed that your client has not filed Amended Grounds of Claim. Therefore, pursuant to the Consent Order, this claim is now treated as withdrawn.”

The Claimant’s solicitors replied in a letter of 22 May 2014. They apologised “for the late response” but did not enclose Amended Grounds and did not offer any explanation for the delay in responding or delay in filing Amended Grounds. The letter provided (amongst other matters):-

“We are waiting for our clients instructions. We will file and serve amended grounds of Judicial Review as soon as possible. We note that the Judicial Review application has been listed for hearing on 28 October 2014 and we write to confirm our client wishes to pursue his application.

Should you have any queries or require further information or assistance, please do not hesitate to contact us.”

On 2 June 2014 The Treasury Solicitor replied on behalf of the SSHD in the following terms:-

“Given that the Amended Grounds of Claim by your client were due by the terms of the Consent Order on 3 April 2014 and you have not provided any reasonable justification for the delay in filing, please confirm that these will now be lodged without delay or explain why a further extension of time is required.”

This prompted an email response from the Claimant’s solicitors on 11 June 2014 in which it was stated:-

“We are still awaiting for our clients instructions as how to proceed in this matter. We will file amended grounds for Judicial Review or explain our client position within the next 14 days.”

They did not do so. Indeed nearly four months passed before the Claimant’s solicitors emailed the Treasury Solicitor enclosing Amended Grounds of Defence on 10 October 2014. The explanation given for the delay in serving amended grounds was the same as in relation to the late filing of the claim form, namely that the Claimant was privately paying for the proceedings and was “out of funds”. In their email they stated, amongst other matters:-

“We propose to rely on these grounds at the substantive hearing on 28 October 2014 and we will challenge the Secretary of State’s recent decision made after the grant of permission to apply for Judicial Review.

We apologise for the delay in serving these amended grounds. Our client is privately paying for these proceedings and was out of funds. It was only earlier this week he was able to give us instructions as how to proceed.”

On 10 October 2014 the Treasury Solicitor wrote to the Administrative Court setting out the chronology of events, and requested that the hearing on 28 October 2014 be adjourned. They referred to the fact that Amended Grounds had only been served that day, to the “severe delay by the Applicant’s solicitors”, and to the fact that they had had no notice of a hearing on 28 October 2014 (though note, in this regard, the Claimant’s solicitor’s letter of 22 May 2014). In an email on 15 October 2014 the Claimant’s solicitors confirmed they would not oppose the request for the substantive hearing to be adjourned.

On 17 October 2014 the Treasury Solicitor issued, and served upon the Claimant’s solicitors, an Application Notice seeking, at part 3 of the application notice, an Order directing that:-

“I. The substantive hearing fixed for the 28 October 2014, be adjourned; and

II. The instant proceedings be dismissed.”

After setting out their chronology of events, and again stating that the Treasury Solicitor had never had any notice of the 28 October 2014 hearing date, the Treasury Solicitor submitted in the following terms on behalf of the SSHD:-

“It is submitted that the Defendant has clearly had no opportunity to properly consider the Claimant’s Amended Grounds which were filed and served severely out of time and has had no opportunity to instruct appropriate counsel to prepare any Detailed Grounds or a Skeleton, or to represent the Defendant at the substantive hearing. It is confirmed that no steps have been taken to prepare for the substantive hearing on 28 October 2014 (the parties have not agreed a bundle nor exchanged skeleton arguments in preparation for the hearing). It is therefore difficult to see how the substantive hearing could realistically proceed next week, and it is submitted that there would be severe prejudice to the Defendant if the hearing did proceed.

Given that the Claimant failed to file and serve Amended Grounds of Claim until over 6 months after the deadline as directed in the sealed Consent Order and just 18 days before the substantive hearing, the Defendant respectfully requests that the Court makes an Order directing that the instant proceedings be dismissed.

If however the Court is not minded to make such an order, the Defendant respectfully requests that the substantive hearing fixed for the 28 October 2014 be adjourned to allow the Defendant sufficient time to prepare her defence.”

The draft court order accompanying the Application Notice provided, so far as the application to dismiss was concerned, as follows:-

“Following consideration of the Defendant’s application for dismissal of this Judicial Review claim and or alternatively for an adjournment of the substantive hearing listed for 28 October 2014;

It is hereby ordered that:-

1.

[The Claimant’s claim for Judicial Review (including both Original Grounds and Amended Grounds) is dismissed due to the Claimant’s failure to comply with the sealed Consent Order signed on 6 November 2013].”

Thus the Application Notice was the origin of the Defendant’s application to dismiss that is before the Court, albeit at this stage the dismissal application was solely focussed on the Defendant’s failure to comply with paragraph 2 of the Consent Order and the consequences of the same under paragraph 4 of the Consent Order, and the points in relation to the proper construction of the Consent Order as a whole. The Bhatti point and the point that there was, said the SSHD, no permission for Amended Grounds to challenge a fresh decision in the same proceedings, had yet to be taken.

The matter came before Master Gidden on paper on 23 October 2014. He ordered as follows:-

“It is hereby ordered that:-

1.

The Claimant will file written submissions with the Court explaining (i) his apparent failure to comply with the order sealed on 13 December 2013 and (ii) why it is in the interests of justice that the claim should proceed. This will be done within 7 days of the sealing of this order failing which the claim will be listed for disposal. The defendant may, within a further 7 days, file submissions in reply and/or pursue the application for the claim to be dismissed at the substantive hearing.

2.

The substantive hearing listed on 28 October 2014 will be vacated and will be re-listed on the first date available to the court after three months from the date on which this order is sealed.

3.

Costs reserved.”

On 29 October 2014 the Claimant wrote to the Administrative Court pursuant to the terms of Master Gidden’s Order. As this letter forms the subject matter of the Claimant’s explanation for non-compliance with the terms of the Consent Order, and the basis on which the Claimant seeks relief from sanctions, it is set out in extensor below:-

“The consent order signed on 6 November 2013 and sealed on 13 December 2013 gave 3 months to the Secretary of State to reconsider the Claimants application and to make a new decision. It also gave the Claimant 21 days from the service of the new decision to amend his grounds of Judicial Review. On 11 December 2013 the Secretary of State made a new decision bur mistakenly served it on Syed Solicitors, the Claimant’s former solicitors. That letter was forwarded to the Claimant’s solicitors in 26 February 2014. The Claimant was notified about that decision immediately. Unfortunately he was not able to give instructions to his solicitors to file the amended grounds of Judicial Review because he was out of funds. He is privately paying for these proceedings and was unable to secure funding. He is not allowed to work in the United Kingdom.

The Claimant’s solicitors accordingly notified Treasury solicitors that they were awaiting instructions as to how to proceed. It was earlier this month he was able to give instructions to his solicitors to file the amended grounds. Amended grounds were duly prepared and filed on 10 October 2014.

The consequences of the Secretary of State’s decision are draconian. The Claimant faces removal following the Secretary of State’s decision. He is married to a British citizen who has two children in the United Kingdom. The Claimant’s Article 8 rights are at stake and there is no other remedy available. The only reason why amended grounds were not filed is due to the Claimant’s lack of funding.

PD 11.1 as to CPR 54.15 provides as follows:

Rule 54.15 - Where claimant seeks to rely on additional grounds

11.1

Where the claimant intends to apply to rely on additional grounds at the hearing of the claim for judicial review, he must give notice to the court and to any other person served with the claim form no later than 7 clear days before the hearing (or the warned date where appropriate).

The substantive hearing was fixed for 28 October 2014. The Claimant gave notice to the court and the Secretary of State as to his intentions to rely on additional grounds on 10 October 2014, i.e., 18 clear days before the hearing. PD requires only a notice of 7 days to be given. The Secretary of State has suffered no prejudice.

In all the circumstances it would be just, proportionate and in accordance with the overriding objective for the claim to be determined on its merits.”

It is convenient to pick up certain points arising out of this letter at this point, and the SSHD’s stance in relation to such points. First the explanation for the delay is once again that the Claimant is privately funded and the Claimant was out of funds until early October 2013. This is the same explanation given in relation to the late filing of the Claim Form, and the initial failure to file Additional Grounds. No other explanation is given for the delay in complying with paragraph 2 of the Consent Order. Nor is an explanation given as to why the Claimant’s solicitors did not update the SSHD within 14 days after 14 June 2014 other than (presumably) that the Claimant was out of funds. As for the consequences of the SSHD’s decision Ms Leventhal for the SSHD suggests that the consequences of the SSHD’s decision are less than Draconian. She points out that the position is that the Claimant’s position remains precarious, but he could make a further application to the SSHD for leave to remain as over two years had passed since the original application was made and supporting information supplied. In this regard she indicated that the SSHD would consider any such fresh application if made on its merits. As for the reference to PD11.1 to CPR 54.15, CPR 54.15 itself contemplates that the court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed. As for prejudice, Ms Leventhal suggests that there has been prejudice in terms of the wasted costs of dealing with matters (though this could be remedied in costs) alternatively absence of prejudice is not the touchstone for relief from sanctions.

The SSHD did not respond to the Claimant’s letter of 29 October 2014 within 7 days but in a letter dated 13 January 2015. Whilst this point is relied upon on behalf of the Claimant as an example of delay by the Defendant, it is acknowledged on behalf of the Claimant that Master Gidden’s Order was in terms of giving the SSHD permission to make submissions in reply (the language is permissive, the defendant “may”). In any event Master Gidden also ordered that the SSHD could in addition or alternatively pursue the application for the claim to be dismissed at the substantive hearing (when the submissions of 13 January 2015 could be repeated without any need to seek the indulgence of the Court).

The Treasury Solicitor’s letter of 13 January 2015 first set out the procedural background. A number of points were made in the submissions that followed. First, it was submitted that the claim for Judicial Review should be treated as having been withdrawn in accordance with the terms of the sealed Consent Order and that the Claimant had failed to provide an adequate explanation for the delay in complying with the consent order. Second it was noted that the Claimant had at no time sought to vary the terms of the Consent order and it was submitted that the submissions of 29 October 2014 failed to justify what was described as the “severe delay” between service of the fresh decision by 26 February 2014 and service of the Claimant’s Amended Grounds (due within 21 days) served on 10 October 2014 which was said to be a delay of nearly 10 months (I would note that in fact the delay from expiry of 21 days was a little over six months but this is still over double the period for commencing judicial review proceedings in respect of a decision in the first place). Thirdly it was submitted that since the decision in Bhatti (a copy of which was attached) claimants should not be permitted to keep alive judicial review proceedings which have been stayed solely to allow for a fresh decision to be issued and the original decision under challenge has been withdrawn. It was submitted that a new claim in new proceedings would normally need to be made once the fresh decision has been made even though this may have an impact on funding for the claimant (and a reference was made once again to Bhatti in this regard).

The submissions continued:

“The fact that the Claimant may not have had sufficient funds to amend his grounds and/or pursue a Judicial Review at the relevant time is not a good reasons for nearly 10 months delay nor does it provide a justification for the judicial review proceedings being kept alive in any event.

The fact that the Claimant has no other remedy is likewise no answer - and in any event he could (if so advised) make a new application for leave to the Secretary of State if he has substantive grounds to do so. It is due the actions of the Claimant in failing to serve Amended Grounds for until nearly 10 months (at least) from the date of service of the fresh decision, despite numerous reminders from the Defendant, that the Claimant is now out of time to lodge a claim for judicial review to challenge the fresh decision of the Defendant. The Claimant cannot now benefit from his own failure to act where there is no reasonable justification for doing so.

The Defendant would therefore respectfully submit that it is not appropriate for the Claimant’s claim for Judicial Review, which should have been treated as withdrawn in accordance with the terms of the sealed Consent Order, to now proceed directly to a substantive hearing.

The Defendant submits that the Claimant’s claim should therefore be treated as withdrawn and this matter listed for disposal.

The Defendant regrets that these submissions were not made within 7 days of the Master’s Order - this was because it was necessary to instruct appropriate counsel in order to advise generally in relation to this case and specifically in relation to the Applicant’s submissions made under the Master’s Order. However, it is submitted that it is nevertheless appropriate for a decision on this issue to be made by a Master in advance of any substantive hearing so as to avoid further cost and court resources being taken up if the claim should in fact be treated as withdrawn.”

The Claimant chose not to respond to this letter. Whilst he was under no obligation to do so this left some uncertainty as to his stance in relation to the application to dismiss and the judicial review - for example whether he wished the dismissal application to precede the substantive hearing, or indeed whether the Claimant was proceeding with the judicial review. Thereafter the Claimant failed to comply with the Practice Direction of CPR 54 pursuant to which a trial bundle and Claimant’s skeleton argument should have been lodged 21 days before the substantive hearing on 18 March 2015.

In the event the matter was not listed for disposal, or referred for decision in advance of the substantive hearing, hence why I was addressed upon it at the substantive hearing. After having heard nothing further from the Claimant since its own letter of 13 January 2015 the Treasury Solicitor wrote to the Claimant’s solicitors on 11 March 2015, noting that the case was still listed for a substantive hearing on 18 March 2015, and asking for confirmation, “whether or not the Claimant intends to pursue this claim for Judicial Review or whether, in the light of the content of the Defendant’s letter dated 13 January 2015, the Claimant intends to withdraw his claim”. It was noted that no trial bundle or Claimant’s skeleton had been served in accordance with the Practice Direction of CPR 54, and the Claimant was invited to agree to withdrawal by consent in advance of the substantive hearing to avoid the incurring of unnecessary costs by both parties. It was confirmed that the Defendant would seek her costs if the matter proceeded to a hearing. The Claimant’s solicitors were asked, in light of the imminent hearing the next week, to take instructions from the Claimant and respond by 4pm on Thursday 12 March 2015, after which it was stated the Defendant would proceed to prepare for the substantive hearing on 18 March 2015 on the basis of the Defendant’s previous letter and submissions to the Court and on the basis of the Claimant’s Amended Grounds, and would prepare and file a short skeleton to the Court accordingly.

By an email at 16.41hrs on 12 March 2015 the Claimant’s solicitors stated, “We have taken instructions from our client and the instructions are to pursue the Judicial Review claim”. The trial bundle index was attached. It was noted that the Defendant had not filed detailed grounds of defence as yet, and the Defendant was asked whether there were any further documents that she would like included in the bundle. The Claimant’s skeleton argument was provided to the Defendant and the Court under cover of an email timed at 09.39 on 16 March 2015 (i.e. 1 clear day, rather than 21 days, before the substantive hearing), with the trial bundle following soon thereafter.

The Claimant’s succinct Skeleton Argument (for which Mr Malik is commended rather than criticised) was three pages in length. At this point it is to be noted that the Skeleton Argument does not address the Defendant’s application to dismiss at all, nor does it seek relief from sanctions, or to regularise the Claimant’s position in relation to the Amended Grounds in any other way. It does, however refer to the written submissions ordered by Master Gidden, but does not address the Claimant’s own submissions of 29 October 2014, and does not refer to or address the Defendant’s submissions contained in the Treasury Solicitor’s letter of 13 January 2015. No explanation is proffered for the delay in serving the Claimant’s Skeleton Argument.

I raised these matters with Mr Malik at the start of the hearing. He stated, and I accept, that Malik Law Chambers were only instructed to proceed with matters in the week of 9 March 2015, and that he was only instructed to settle the Claimant’s Skeleton Argument and appear at the hearing on 10 March 2015, and that he had settled the Claimant’s Skeleton Argument as at 13 March 2015 with it being served soon thereafter (in the event it appears on the morning of Monday 16 March 2015). He explained that the reason for the failure to comply with CPR 54 and the delay in proceeding with the preparations for the substantive hearing was, once again, lack of funds on the part of the Claimant. I accept Mr Malik’s explanation and I should make clear that no criticism is made of Malik Law Chambers, or Mr Malik for the delays that have taken place in this case, and for which the Claimant is responsible.

Mr Malik indicated that the Claimant did seek relief from sanctions and asked that the claim for judicial review be allowed to proceed on the basis of the Amended Grounds (challenging the decision of 12 December 2013). As for the fact that the Claimant’s Skeleton Argument does not address the application to dismiss Mr Malik candidly, and in my view realistically, stated that there was nothing he could add to the explanation given for the delay in the Claimant’s letter of 29 October 2015, namely a “lack of funds” on the part of the Claimant.

The Defendant’s Skeleton Argument in response was served the following day on 17 March 2015, the day before the hearing. It advances the application for dismissal on the bases identified at the start of this judgment (to which I will now turn) and provides the Defendant’s submissions on the substantive judicial review hearing.

CPR paragraphs 1.1 to 1.3 provide as follows:

“The overriding objective

1.1

(1)

These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2)

Dealing with a case justly and at proportionate cost includes, so far as is practicable-

(a)

ensuring that the parties are on an equal footing;

(b)

saving expense;

(c)

dealing with the case in ways which are proportionate

(i)

to the amount of money involved;

(ii)

to the importance of the case;

(iii)

to the complexity of the issues; and

(iv)

to the financial position of each party;

(d)

ensuring that it is dealt with expeditiously and fairly;

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f)

enforcing compliance with rules, practice directions and orders.

Application by the court of the overriding objective

1.2

The court must seek to give effect to the overriding objective when it-

(a)

exercises any power given to it by the Rules; or

(b)

interprets any rule, subject to rules 76.2, 79.2, 80.2 and 82.2.

Duty of the parties

1.3

The parties are required to help the court to further the overriding objective.”

CPR paragraph 3.8(1) and paragraph 3.9 provide:-

“Sanctions have effect unless defaulting party obtains relief

3.8

(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

...

Relief from sanctions

3.9

(1) On application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need-

(a)

for litigation to be conducted efficiently and at proportionate cost; and

(b)

to enforce compliance with rules, practice directions and orders.

(2)

An application for relief must be supported by evidence.”

As was accepted at the hearing on behalf of the Claimant, the effect of paragraph 4 of the Consent Order was that as the Claimant had not filed amended grounds within 21 days of the ending of the stay, the claim for judicial review was treated as withdrawn (and as such could not proceed) unless relief from that sanction was given under CPR 3.9.

The Claimant’s application for relief from sanction was an informal one (no application notice seeking such relief ever being issued, though relief was effectively sought in the Claimant’s solicitor’s letter of 29 October 2014), and the only evidence relied upon in support was the contents of the Claimant’s solicitor’s letter of 29 October 2014, as confirmed before me orally by Mr Malik. Notwithstanding the absence of any formal application with supporting evidence, I was prepared to treat the letter of 29 October 2014 as fulfilling these roles.

It is common ground between the parties that the principles to be applied by me in determining whether to grant the Claimant relief from sanctions are those identified in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795 (Mitchell), and the subsequent guidance thereon in Denton v TH White Ltd. [2014] 1 W.L.R. 3926, (Denton) together with The Queen on the application of Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633 (Hysaj).

A convenient summary of the applicable principles is provided by Moore-Bick LJ (with whom Tomlinson and King LJJ agreed) at paragraphs 37 to 38 of Hysaj :-

“The Mitchell principles

37

In paragraphs 40-41 of its judgment in Mitchell the court provided guidance on the approach to be adopted to applications for relief from sanctions. The most relevant parts of that guidance to be found in those and certain other paragraphs of the judgment can be summarised for present purposes as follows:

(i)

if the failure to comply with the relevant rule, practice direction or court order can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly;

(ii)

if the failure is not trivial, the burden is on the defaulting party to persuade the court to grant relief;

(iii)

the court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted, but merely overlooking the deadline is unlikely to constitute a good reason;

(iv)

it is necessary to consider all the circumstances of the case before reaching a decision, but particular weight is to be given to the factors specifically mentioned in rule 3.9.

38

In Denton the court affirmed the guidance given in paragraphs 40-41 of Mitchell, but explained the approach in more detail as follows:

“24 A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

It is this more detailed guidance to which judges should now look when considering applications under CPR 3.9 and applications for extensions of time for filing a notice of appeal made after the time for doing so has expired.”

In Hysaj Moore-Bick LJ, at paragraph 41 of his judgment, rejected a suggestion that was made in that case that when dealing with an extension of time to appeal in public law cases generally the court should adopt a more lenient approach because the appeal would almost invariably raise issues which it was in the public interest for the court to consider. He accepted, however, that the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision-making process to evaluate all the circumstances of the case.

So far as the explanation for delay, and non-compliance with a Court order being a shortage of funds, this was decisively rejected in Hysaj as a good reason for delay. Whilst this was in the context of a failure to file a notice of appeal at the right time I consider the sentiments expressed apply equally to any other non-compliance with the rules or a court order where relief from sanction is sought. Mr Malik rightly acknowledged the difficulty this placed the Claimant in on his application for relief from sanction given that shortage of funds was the Claimant’s only explanation for the delay. In this regard he pointed out the complexities of immigration law (even for lawyers and judges, and the observations of Lord Underhill LJ in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 at [59] in that regard) and the difficulties the Claimant would have been in at a time when he did not have funds to pay lawyers, and so his situation (it was submitted) might be regarded as analogous to litigants in person. As his solicitors remained on the record I do not consider this a particularly apt analogy, but in any event, neither shortage of funds nor the fact that a litigant is acting in person will normally amount to a good reason for delay and associated default.

Both these points were addressed by Moore-Bick LJ at paragraphs 43 and 44 of Hysaj:-

“(b)

Shortage of funds

43 Mr. Benisi sought to explain part of the delay that had occurred in his case by asserting that he did not have sufficient funds at his disposal to enable him to instruct solicitors to file a notice of appeal at the right time. In my view shortage of funds does not provide a good reason for delay. I can well understand that litigants would prefer to be legally represented and that some may be deterred by the prospect of having to act on their own behalf. Nonetheless, in the modern world the inability to pay for legal representation cannot be regarded as providing a good reason for delay. Unfortunately, many litigants are now forced to act on their own behalf and the rules apply to them as well.

(c)

Litigants in person

44 At the time when the decisions which they now seek to challenge were made Mr. Benisi and Mr. Robinson were both acting in person. It is therefore convenient to consider whether the court should adopt a different approach in relation to litigants in person. The fact that a party is unrepresented is of no significance at the first stage of the enquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. That was the view expressed by the majority in Denton at paragraph 40 and, with respect, I entirely agree with it. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.”

Similar sentiments were expressed by HHJ Pelling QC (sitting as a Judge of the High Court) in Bhatti in the context of the suggestion that delay in obtaining legal aid could amount to a good reason for delay, at paragraph 27 of his judgment:-

“There is one final point that I ought to make before leaving this part of the case. I have drawn attention to the evidence filed on behalf of the Claimant concerning the steps that have to be taken in order to obtain legal aid. I do not consider that evidence is at all material to the issue that I have to decide, at any rate in the circumstances of this case. The steps that have to be taken by a party seeking legal aid are established by the primary and secondary legislation that governs its availability. I do not see how it can be at all appropriate for the Court to be invited to adjust its procedures in order to assist a party in receipt of legal aid to avoid the requirements of that legislation.”

I turn then to the application for relief and the three stage approach in identified in Denton. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1), here the failure on the part of the Claimant to file amended grounds within 21 days of the ending of the stay, in accordance with paragraph 2 of the Consent Order failing which the claim for judicial review was to be treated as withdrawn pursuant to paragraph 4 of the Consent Order.

In the present case the failure to comply with the terms of the Consent Order by filing amended grounds within 21 days of the ending of the stay far from being trivial was both serious and significant. The whole purpose of this provision was to bring finality and certainty as to whether the proceedings were at an end or not, and within short order saving both court time and costs to the parties (see CPR 3.9(1)(a)). If no amended grounds were served within 21 days the claim for judicial review was to be treated as withdrawn. The result of the Claimant’s inaction was that it disrupted the course of the litigation and its cessation (or pursuance). That which had been intended either to cease, or to be progressed expeditiously, continued, wasting costs for the Defendant, and resources for the Court.

The Claimant was aware of the wording of paragraph 4 of the Consent Order (his solicitors had amended its wording immediately before the final wording was agreed - see the email of 25 October 2013) and his failure to serve amended grounds was drawn to his attention by the Treasury Solicitor on 29 April 2014, and again on 2 June 2014. Despite it being stating on 11 June 2014 that “we will file amended grounds for Judicial Review or explain our client [sic] position within the next 14 days” this was not done, and there was no further communication until 10 October 2014 when amended grounds were served (even then without any application for an extension of time or relief from sanction). It was only the intervention of the Claimant (by her application notice) and the subsequent order of Master Gidden that caused the Claimant to seek relief from sanction in his solicitors’ letter of 29 October 2014.

The delay was one of over six months, compared to a period of 21 days. What is more, applications for judicial review are to be made promptly and in any event within 90 days. The delay was over double the period for the commencement of judicial review proceedings in circumstances where, when the amended grounds were finally served, it was apparent that what was being sought to be advanced was a challenge to the fresh decision of 11 December 2013, and on grounds specific to that fresh decision (see the consideration of the Bhatti principles in due course below). Whether this was even permissible is addressed in the context of the construction of the Consent Order and the Bhatti principles, but on any view having failed to file amended grounds within 21 days triggering what was a terminating event in relation to the litigation it was a serious default not to serve amended grounds for many months thereafter.

In such circumstances I consider that the failure to serve amended grounds within 21 days of the stay being lifted was both serious and significant in the respects I have identified. I accordingly turn to the second stage and why the default occurred. As I have already foreshadowed the only explanation for the delay, as Mr Malik acknowledged, is that the Claimant was “out of funds”, as explained by his solicitors in their letter of 29 October 2014 in the following terms, which I repeat for ease of reference:-

“Unfortunately he was not able to give instructions to his solicitors to file the amended grounds of Judicial Review because he was out of funds. He is privately paying for these proceedings and was unable to secure funding. He is not allowed to work in the UK”.

A shortage of funds generally does not amount to good reason for delay (see Hysaj at [43] as quoted above), and I do not consider it amounts to a good reason for delay on the facts of the present case. As was identified in Hysaj an inability to pay for legal representation cannot be regarded as providing a good reason for delay. Furthermore there is no factor specific to this case that differentiates this case from that general principle. In the absence of funds the Claimant could have continued as a litigant in person. The fact that immigration law is complex, and that this would have placed the Claimant in a difficult situation would be no answer. The court cannot accept the mere fact of a claimant being unrepresented as providing a good reason for not adhering to the rules (Hysaj at [44]). In the event no explanation was given prior to the filing of amended grounds for the failure to file amended grounds at any time up to 10 October 2014, nor was any step taken to file amended grounds before that time. In the circumstances I consider no good reason exists for the delay and associated default.

Turning then to the third stage and all the circumstances of the case, so as to enable the court to deal justly with the application, including the need for litigation to be conducted efficiently and at proportionate costs and to enforce compliance with the terms of the Consent Order approved by the Court. In this case the breach has prevented the litigation either being brought to a swift end, or it proceeding expeditiously which weighs against granting relief, as does the fact that there has been a failure to comply with the terms of the Consent Order over an extended period of time and without any good reason.

The parties considered, and agreed, that the appropriate sanction for failure to serve amended grounds within 21 days was the withdrawal of the claim for judicial review. In such circumstances the sanction of withdrawal is in my view entirely appropriate where amended grounds were not served for over six months (many multiples of the 21 day period). The application itself was not made promptly - no application for an extension of time was made before or after the expiry of the 21 days or indeed for many months thereafter or at all (save in the sense of seeking relief from sanction in the letter of 29 October 2014 many months after the default). The original application for judicial review was itself not made promptly, and indeed was made out of time, again due to a “lack of funds”, and the letter of 11 June 2014 itself promised the filing of amended grounds for judicial review or an explanation of the Claimant’s position within 14 days which was not done. There is also a history of failing to comply with the requirements of CPR 54, with no trial bundle or skeleton being filed within 21 days before the previous fixed date of 28 October 2014 for the substantive hearing, and with the trial bundle and skeleton argument for this hearing not being lodged 21 days beforehand, but only one clear working day beforehand. Even the application itself is made informally in the letter of 28 October 2014, as opposed to by application notice and supporting witness statement.

All the above factors in my view speak with one voice and weigh heavily against the granting of relief from sanctions. I turn then to the matters raised by the Claimant in his solicitors’ letter of 29 October 2014 in the light of which he submits that it would be “just, proportionate and in accordance with the overriding objective for the claim to be determined on its merits”. The first point raised is the explanation for delay - namely that the Claimant is privately funded and the Claimant was out of funds until early October 2014. As Mr Malik rightly accepted in his oral submissions this is not a good reason for delay (see the discussion above and Hysaj at [43]). The same is true in relation to that the Claimant was effectively in the position of a litigant in person advancing a claim in a complex area of the law (see the discussion above and Hysaj at [44]).

It is suggested that the consequences of SSHD’s decisions are Draconian. The immediate situation that the Claimant finds himself in (facing a refusal of relief of sanctions) is a consequence of his own delay and failure to comply with the terms of the Consent Order. So far as the wider picture, and the effect of the SSHD’s decisions, I agree with the submissions of Ms Leventhal for the SSHD that it over-states the consequences of the SSHD’s decision to describe them as “Draconian”. Whilst the position is that the Claimant’s position remains precarious, he could make a further application to the SSHD for leave to remain (over two years have passed since the original application was made and supporting information supplied), and I have already noted that Ms Leventhal indicated at the hearing that the SSHD would consider any such fresh application, if made, on its merits.

As for the reference to PD11.1 to CPR 54.15 which addresses the timing of notice of intention to rely on additional grounds, we are here concerned with non-compliance with an order that provided when additional grounds were to be supplied by, and CPR 54.15 itself contemplates that the court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed. As appears below when considering the other basis for dismissal I do not consider that the Consent Order permits amended grounds to be served which raise a challenge, on new grounds, to the free-standing decision of 11 December 2013.

So far as prejudice is concerned, I accept that the SSHD has not suffered prejudice in terms of the ability to address the substantive amended grounds, but this is, but one of the factors to be taken into account in a consideration of all the circumstances, and I consider the factors I have identified above, as far outweighing such weight as is to be given to the absence of prejudice. There is also the fact that the SSHD has been put to trouble, expense, and uncertainty in dealing with matters though this could largely be remedied in costs.

I acknowledge that when considering all the circumstances of the case and whether to grant relief the court is entitled to consider the merits of the case and consider whether those merits are particularly strong one way or another as one factor to weigh in the balance. I do not consider the Claimant’s case to be a strong one as will be apparent when I address the amended grounds and the substantive claim for judicial review, indeed I do not consider it would have passed the test for permission to apply for judicial review had permission been sought. However in weighing matters in the balance I have chosen not to hold this against the Claimant. I would add that on any view the merits are not such as to weigh in favour of granting relief, or to amount to a “trump card” in the Claimant’s favour.

In the circumstances identified above, and for the reasons given above, in the exercise of my discretion I do not consider that this is an appropriate case for relief from sanctions, and the Claimant’s application in that regard is refused. It follows, applying paragraph 4 of the Consent Order, that the application for judicial review is to be dismissed.

I would add that there are in any event three further independent and free-standing reasons why I consider it would be inappropriate to grant relief from sanctions to allow a claim based on the amended grounds to proceed, and which each itself justifies the refusal of the Claimant’s application for relief of sanctions:-

In the above circumstances the application for judicial review is dismissed.

I can deal with the issue that arises as to the proper construction of the Consent Order shortly. It will be recalled that the Consent Order provided, in material respects, as follows:-

“UPON the Defendant agreeing to reconsider the Claimant’s application for leave to remain dated 3 April 2012 and issue a new decision within 3 months of sealing of this consent order, absent special circumstances;

BY CONSENT, it is ordered that:-

1.

The Claimant’s application for Judicial Review be stayed for 3 months from the date this consent order is sealed.

2.

If the Claimant wishes to proceed with the application he must file Amended Grounds of Claim within 21 days of the stay coming to an end.

3.

The Defendant may file an amended Acknowledgment of Service within 21 days of receipt of the Claimant’s Amended Grounds of Claim.

4.

If the Claimant does not file amended grounds within 21 days of the ending of the stay, the application will be treated as withdrawn.

5.

Costs reserved.”

The Claimant argues that by the Consent Order the parties have agreed (and the Court has approved) that the Claimant may file Amended Grounds of Claim which challenge the subject-matter of the contemplated further decision of the SSHD. Before considering the surrounding factual matrix, and viewing the Consent Order on its face, I consider that this construction is not the ordinary and natural construction of the Consent Order and indeed is contrary to the language used. The “application for Judicial Review” that is referred to in paragraph 1 is, and can only be, a reference to the existing application for which permission has been granted which challenges the previous decisions of the SSHD, and the word “application” in paragraph 2 is to be understood as a reference to that existing application. Equally any amended grounds must relate to that “application”. It is perfectly possible to contemplate a situation where it might be necessary or appropriate to proceed with this application - for example if the SSHD had refused to reconsider after all, or she had simply deployed arguments that had previously been used without engaging on the Article 8 considerations so that the challenge to the earlier decisions remained.

On the basis of the terms of the Consent Order itself I consider that the objective common intention of the parties was that the SSHD would undertake a reconsideration, and in the light of that the existing application would probably be withdrawn (if it became academic in the light of the SSHD’s decision), with the possibility that there might be a need to pursue the existing application (for example if the SSHD failed to reconsider matters). I do not consider that it was the objective common intention of the parties in the Consent Order, and paragraph 2 thereof, to grant the Claimant permission to pursue fresh grounds of judicial review based on the contents of a new free-standing decision. The rejection of the Claimant’s construction also makes commercial sense, and accords with two recognised principles, first that any application for permission to apply for judicial review requires the permission of the Court (and you would expect clear words if the parties were attempting to agree otherwise), and secondly that it is inappropriate for an existing claim to remain on foot where the original decision has been superseded/withdrawn/quashed, solely in order to permit a subsequent decision to be challenged without commencing new proceedings and without being subject to the permission stage.

The Consent Order has, of course, to be construed in the context of the admissible factual background. However the Claimant was unable to identify anything in the contemporary correspondence (which has already been quoted above) that supported the Claimant’s construction. On the contrary, the correspondence from the SSHD (specifically the SSHD’s letters of 18 September 2013 and 17 October 2013) contemplate that the existing judicial review is academic. The wording that was ultimately agreed to in my view simply protects the existing claim for judicial review in the event that it proved necessary to continue that challenge following the SSHD’s further decision.

In such circumstances it follows that the Claimant was not permitted to serve amended grounds which sought to challenge the new free-standing decision of 11 December 2013. Any such challenge would need to be brought within separate judicial proceedings in the context of the Bhatti principles, or the subject matter of an application to serve amended grounds. No such separate judicial proceedings were commenced (and any such proceedings would be out of time). Equally even if an application had been made for permission to amend to allow such amended grounds in the existing action (and no such application was made to me) that application would stand to be refused, and would have been, refused, on the ground that such an amendment was not appropriate on the facts (given that the SSHD’s decision in the Decision Letter was a new free-standing separate decision in relation to which the principles in Bhatti apply, as Mr Malik rightly accepts). It would also fall to have been refused on the merits.

In the case of Bhatti, the Administrative Court considered and applied the general principles derived from The Queen on the Application of Rathakrishnan v Secretary of State for the Home Department [2011] EWHC 1406 (“Rathakrishnan”) as to the circumstances in which a claim should be permitted to remain on foot (as opposed to being withdrawn or dismissed), where the original decision has been superseded/withdrawn/quashed, solely in order to permit a subsequent decision to be challenged without commencing new proceedings and without being subject to the permission stage.

In Bhatti the claimant suffered from serious chronic medical conditions and the local council had carried out a financial assessment for the purpose of ascertaining the maximum contribution that she would be required to make for the provision of care services by the Council to her. The Council assessed the claimant’s maximum contribution in a figure that the claimant said she could not afford. The claimant commenced judicial review proceedings challenging the assessment. In due course by the terms of a consent order it was agreed that the claim for judicial review be stayed pending a re-assessment by the council of the claimant’s needs. It was not in dispute that the re-assessment was a fresh assessment. One of the terms of the consent order was that following the reassessment the claimant was to inform the court if she wishes to reinstate her claim, and if the claim was reinstated the claimant was to file and serve “amended grounds by a specified date, if so advised”. The matter came before HHJ Pelling QC (sitting as a Deputy High Court Judge) on the claimant’s application for permission to amend the Grounds by reference to the decision taken after the issue of the Claim Form, and for permission to continue the proceedings on the basis of the amended grounds. In the result the judge concluded that the terms of the consent order did not entitle the claimant to advance a new claim in relation to the new decision. The proper course, consistently with that identified by Ousely J in Rathakrishnan was that the proceedings should have been withdrawn or dismissed at the latest once the council had completed the new assessment and given their new decision

In reaching the conclusions he did as to the proper course to be adopted (subject to the terms of any consent order), HHJ Pelling QC undertook a comprehensive review of the relevant authorities at paragraphs 15 to 22 of his judgment which it is worth quoting in full:-

“15.

The Claimant's case is that she ought to be permitted to proceed to challenge the new decisions taken by the Council by filing substitute Grounds applying the principles set out in Turgut (ante) and / or because the issue is one of discretion and I ought to permit that course given the difficulties referred to by Mr Pemberton in his witness statement and/or because the course that she wishes to adopt is permitted by the Consent Order. The Defendant maintains that this approach is entirely mistaken and that in all save exceptional cases, a new challenge to a new and subsequent decision ought to be challenged in new proceedings that is then subjected to judicial scrutiny on paper. The Defendant does not accept that it was intended that the Consent Order should be used in the manner that the Claimant now seeks to use it, does not accept that the withdrawal of the initial decision was in any sense a tactical concession and does not accept that there is any special circumstances in the facts of this case that justifies a departure from what is contended to be the correct procedure.

16.

In support of her contention as to the correct course to be adopted, the Claimant relies on the guidance of Schiemann LJ in Turgut (ante). The facts of that case are not centrally relevant. The guidance on which the Claimant relies is to be found at the end of Schiemann LJ's judgment. In summary that guidance is that where the decision maker (in that case the SSHD) is given permission to adduce evidence that he has made a new decision in light of evidence filed in the proceedings by the Claimant, but the decision is the same, it will generally be convenient to substitute the subsequent decision for the first decision as the decision that is being challenged.

17.

In my judgment the key elements that led Schiemann LJ to reach the conclusion he did were (a) the new decision was based on evidence filed by the Claimant in the proceedings and (b) the subsequent decision is to the same effect as the decision that led to the commencement of the proceedings. That is not this case. Here the Council did not merely reconsider the decision previously taken in the light of further evidence supplied by the Claimant in these proceedings and then reach the same conclusion on the same issue. Here, in light of the challenge made, the Council withdraw the decision it had taken, it says at the request of the Claimant, and them embarked on entirely different decision-making first by assessing her needs and then considering what if any financial contribution was required by the Claimant. The decision that is now challenged is not the decision concerning financial contribution but the effect of the assessment as to her needs.

18.

The effect of Turgut was considered by Ouseley J in Rathakrishnan [2011] EWHC 1406 (Admin). The case was concerned with a claim where permission was given by a Judge, following a renewed application for permission. The SSHD then decided that she would no longer rely on the challenged decision. She then proceeded to issue a further decision letter dealing with the issues that led to permission being granted and some further evidence produced after the SSHD's original decision had been taken. The SSHD invited the claimant in those proceedings to agree to the original decision being quashed and that she be ordered to reconsider the position. This had been resisted by the Claimant relying on Turgut on the ground that there was a disadvantage to a claimant if a decision was quashed thereby putting an end to the proceedings because in that event it would be necessary to launch a new challenge in new proceedings. Ouseley J rejected this submission. He concluded that the course set out by Schiemann LJ in Turgut was the exception rather than the rule. At paragraph 9 of his judgment he said this:

"It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a different challenge in respect of a different decision based on different evidence without having to go through the necessary applications including the payment of fees for the purpose of challenging that further decision and should thereby evade the filter mechanism and simply take his place on a seemingly adjourned renewal application.

…

It is too often that these cases have come before the court at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant. This makes for a wholly unsatisfactory process of litigation."

19.

In relation to Turgut, Ouseley J said that the court in that case was concerned to avoid procedural complexity "… where at the time the court was dealing with a particular decision, there had been a further decision by the Secretary of State upon which the Secretary of State was relying instead and against which the claimant was seeking to raise the same or additional points of challenge.". I respectfully agree. That is not this case. In this case the original decision has been withdrawn and replaced with entirely different decisions in respect of which entirely different challenges are made. As Ouseley J added at Paragraph 12 of his judgment:

"Turgut was not and did not purport to be authority for a general proposition that where proceedings challenging a decision … had begun, those proceedings were to remain on foot or stayed until such time as any further challenges to further decisions which may be issued at future dates have been finally concluded."

20.

Ultimately the court retains a discretion as to whether to permit amendments. To an extent, each case will be fact specific. Subject to that qualification, Ouseley J has identified in Rathakrishnan the approach that generally will be adopted in cases such as the present. That approach is not only obvious for the reasons identified by Ouseley J in Paragraph 9 of his judgment, but is supported by the decision of the Court of Appeal in R v. SSHD ex p Al Abi, referred to by Ouseley J in Paragraphs 13 and 14 of his judgment. There the issue was what should be allowed to happen where the SSHD agreed to issue a fresh decision following the grant of permission and not to rely on the earlier decision in respect of which permission had been granted. The conclusion reached was that the proceedings should not be allowed to continue save where the point that arose was of general importance and the point which was at issue in relation to the initial decision challenged would remain an issue in relation to the subsequent decision. Again that is not this case.

21.

As Munby J (as he then was) said in Paragraph 33 of his judgment in R (on the application of P) v. Essex County Council [2004] EWHC 2027 (Admin), it is not part of the function of the Administrative Court to "… monitor, regulate or police the performance by the County Council of its statutory functions on a continuing basis …the function of the Administrative Court is … to review the lawfulness of a decision action or failure to act in relation to the exercise of a public function. In other words the Administrative Court exists to adjudicate upon specific challenges to discrete decisions …" The approach that Ouseley J has identified in Rathakrishnan is a means by which this approach to the function of the Court is delivered.

22.

In my judgment Ouseley J's approach represents the correct general approach to be adopted unless the case is one that falls within the exception identified by the Court of Appeal in Turgut being that referred to in Paragraph 19 above or is otherwise exceptional in the ways identified in Al Abi. Thus I conclude that the correct course that ought in principle to have been adopted in this case is that at once the Council had embarked on the fresh decision making referred to in Paragraph 2 of the Consent Order, either it should have been withdrawn or dismissed in either case subject to any submissions concerning costs. Whilst the decision is one ultimately of discretion there is nothing in the facts of this case that leads me to think that the discretion should be exercised differently from that indicated by Ouseley J as applicable in the generality of cases, other than the impact of the availability of legal aid which I consider at the end of this section of this judgment.”

In summary, therefore, in Bhatti it was held that the general rule was that a claim should not be permitted to remain on foot by way of stay where the original decision has been superseded solely in order to permit a subsequent decision to be challenged without commencing new proceedings and without being the subject of the permission stage, unless the case falls within the exception identified by the Court of Appeal in R v SSHD ex p Turget [2001] 1 All E.R. 719 (“Turget”) or is otherwise exceptional in the ways identified in R v SSHD ex p Ali , 5 February 1997, 1997/WL/1105932; 1998 COD 103 (“Ali”).

In Rathakrishnan Ouseley J stated at [17-18]:

"17.

The concern that there might be an issue of wide and general application is also no reason, save exceptionally, for the claim to remain on foot because if an issue is of wide and general application there will be other cases that will raise the point. There may of course be a case in which that wide and general issue is sufficiently far advanced for it to be better for the matter to proceed but it is generally unwise for a case to decide such an issue if a fresh decision might make the issue academic in that case. The point I emphasise from those cases is that where a fresh decision has yet to be made and is going to be made, the existing proceedings should normally end. It may be otherwise where the fresh decision is actually already before the court at the time it comes to deal with the matter or there are other exceptional circumstances which mean that the proceedings should remain on foot. Legal aid difficulties in detained cases could be an example.

18.

If an exceptional course is adopted, the question arises whether the amended challenge should start at precisely the point where the earlier challenge had been stayed because of the filter process. The court has seen a number of instances in which parties have merely agreed that the claimant should amend his grounds of claim if appropriate. The order can only be that he should apply to amend his grounds if appropriate. The court needs to consider the arguability of the new grounds whether through a filter process or through a process of permitting amendment. If proceedings are stayed with a view to a further challenge to a further decision being made, it has to be made perfectly clear in any order that an application for permission to amend must be made. The eventual application must be supported by appropriate fees and provision must be made – for which the court's endorsement of the order would be required – as to the procedure by which arguability or the granting of permission to amend should be resolved, whether on paper or at an oral permission hearing."

As to the application of the principles in Rathakrishnan and Bhatti to the present case, the SSHD’s decision of 11 December 2013 was a new free-standing separate decision (as Mr Malik accepted) and I do not consider the claims now sought to be advanced in the amended grounds to be within the exception identified in the Court of Appeal in Turgut or to be otherwise exceptional in the ways identified in Ali. In short the amended grounds seek to advance an entirely new claim for judicial review in relation to a new free-standing separate decision through the vehicle of the existing claim, and without obtaining permission to amend or adopting the correct approach of commencing fresh proceedings for judicial review (which would not have been made promptly or within 90 days). In such circumstances had an application been made to amend the grounds to proceed with the claim there set out in this action I would have refused such permission, and as already identified the existing claim does not allow the new claim to be advanced, and is to be dismissed. The Claimant is not entitled to advance a challenge to the Decision Letter in amended grounds in this action, and I so declare. I would only add that if the parties had agreed that the new decision of 11 December 2013 could be challenged through the vehicle of the filing of amended grounds (contrary to my finding on the proper construction of the Consent Order) I consider it would have been within the inherent jurisdiction of this Court, and the exercise of its case management powers, to have struck out such claim or refused to hear such claim in circumstances where it sought to circumvent the permission stage and the appropriate court fees, as identified by Ousely J in Rathakrishnan.

In the light of my dismissal of the existing claim, and my conclusion that the Claimant would not in any event be permitted to advance the amended grounds by way of challenge to the SSHD’s decision of 11 December 2013 in the current proceedings, the substantive claim for judicial review based on the amended grounds does not arise. However as I heard full argument on the same, I will express my conclusions on the points raised, albeit addressing matters more briefly than I otherwise would have done had the claim been allowed to proceed.

The Claimant only supplied relatively limited information in his application for leave to remain. In section 2 he identified that his partner Shaheen Kauser was a British citizen who had lived in the UK for over 10 years, and in section 7 identified that they had married in Birmingham on 1 March 2012 and that he had met her in Birmingham and they had decided to live together since the summer of 2011 (after Nikkah). In section 5 (in which the Claimant claimed exemption from the English language requirement) he stated, “looking after wife all the time. She is not well. Have no time to study for test. Will make arrangements soon if possible”. The Claimant enclosed photocopies of the birth certificates of Shaheen’s two adult children from her earlier marriage, Mohammad lfzal and Kasam Khan who were born respectively on 6 March 1988 and 18 April 1989, and are also British citizens living in the UK. Accordingly at the time of the SSHD’s decision of 11 December 2013 they would have been 25 and 24 respectively.

Amongst other documentation enclosed the Claimant enclosed a letter dated 31 August 2012 from his wife’s doctor, which provided:

“I confirm that Mrs Kauser is suffering from depressive illness, Musculoskeletal pains like lower back pains. Arthritis both knee joints, Irritable bowel syndrome and hyperacidity.

Her medication includes; Amitriptyline Hydrochoride Tablets 10 mg 1 noc”

It was not suggested in the application, nor before me by Mr Malik, that the health of his wife was such as would have prevented her joining him in Pakistan, a point Mr Malik confirmed during the course of his oral submissions, when asked by me.

The Claimant also enclosed a document entitled “Additional Grounds”. This provided (amongst other matters):-

“I am unable to return to Pakistan to apply for entry clearance as a spouse as I am practically and emotionally supporting my wife. My wife has two children of her own to whom I have established a very close bond to. In the case of Chikwamba v SSHD [2008] UKHL 40 it was held that it was not appropriate to dismiss Article 8 cases, especially involving children, on the basis that the appellant can return back to their country of origin and apply for entry clearance. If I had to return to apply for entry clearance this would be practically difficult for me and would couse [sic] unnecessary disruption to our family unit.

If I was removed from the country this would have a significant impact on my family. In the case of Beoku-Betts [2005] UKHL 39 it was held that when an immigration decision was to be made, consideration should also be made of the rights of family members and how the immigration decision would affect them.”

The Decision Letter began in the following terms:-

“Further to the agreement to reconsider your clients’ application for further leave to remain in the United Kingdom, I have reconsidered your clients’ application for further leave to remain under Article 8 ECHR taking into account Section 55 of the Borders Citizenship and Immigration Act 2009 and the Immigration Rules put in place on 9^th July 2012 under Appendix FM”

The SSHD then set out the Claimant’s immigration history and noted that the application was for leave to remain as the spouse of a British citizen in the UK. Under the heading “Article 8 Consideration” it was stated that, “Your clients’ case has been considered under the provisions of the European Convention on Human Rights, specifically Article 8".

Under the heading “Requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom”, and after setting out the terms of paragraph 284 of the Immigration Rules, the SSHD concluded that the Claimant failed to meet the requirements of paragraph 284(i) and (iv) as he had overstayed in the UK for a period far in excess of 28 days.

It was then stated, “I have considered Article 8 by applying the relevant provisions of the rules in force on 9 July 2012 (paragraph EX.1 of Appendix FM for family life and paragraph 276ADE(1) for private life) as below”. After quoting the requirements to be met by an individual to be granted leave to remain in the UK in R-LTRP.1.1(d) of Appendix FM it was stated, “I am satisfied that your client meets the eligibility requirements (E-LTRP 1.2-1.12 and 2.1) to gain consideration under paragraph EX.1".

Although not set out in the Decision Letter EX.1 provides:-

“Section EX Exceptions to certain eligibility requirements for leave to remain as a partner or parent

EX.1. This paragraph applies if

(a)

(i) the applicant has a genuine and subsisting parental relationship with a child who -

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii)

it would not be reasonable to expect the child to leave the UK; or

(b)

the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

Under the heading “Exceptions Paragraph EX.1" it was stated:-

“We have carefully considered your client’s application. We acknowledge that he is in a genuine and subsisting relationship a British Citizen, and that his spouse has 2 children that are currently residing in the United Kingdom. However, her children are both adults and leading independent lives; therefore it is asserted that there are no insurmountable obstacles to family life preventing the relationship from continuing outside of the United Kingdom. Therefore the secretary of state is not satisfied that your client meets the requirements of paragraph EX.1 of the immigration rules and the application is refused.”

Under the heading “Section 55 consideration” it was then stated:-

“It has also been considered whether the particular circumstances set out in your clients application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. We have also taken into account the need to safeguard and promote the welfare of children in the United Kingdom in accordance with our duties under section 55 of the Borders, Citizenship and Immigration Act 2009.

We acknowledge that your client’s spouse has 2 children in the United Kingdom, however, they are both adults and leading independent lives. Therefore there is no reason why your client and his partner cannot return to Pakistan together. Whilst this may involve a degree of disruption to their private life , it is considered to be proportionate to the legitimate aim of maintaining effective immigration control and is in accordance with our section 55 duties. It has been decided that a grant of leave outside the rules is not appropriate. Your client’s application for leave to remain in the United Kingdom is therefore refused.”

Under the headings “Private Life”, “Requirements to be met by an applicant for leave to remain on the grounds of private life” the SSHD quoted the terms of paragraph 276ADE including:-

“276ADE(1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application, the applicant:

...

(vi)

subject to paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

After considering, and rejecting the applicability of paragraphs 276ADE(iv) and (v), the SSHD concluded in relation to paragraph 276ADE(vi):-

“Having spent 36 years in Pakistan and in the absence of any evidence to the contrary, it is not accepted that the in the period of time that your client has been in the UK he has lost ties to his home country and therefore the Secretary of State is not satisfied that your client can meet the requirements of Rule 276ADE(1)(vi).”

Finally under the heading “Exceptional Circumstances” it was stated:

“Your clients’ application has been considered exceptionally outside the immigration rules. However the Secretary of State’s policy is not to exercise discretion unless there are clear exceptional compassionate circumstances which merit the exercise of discretion outside the Immigration Rules.

We have now reconsidered your clients application and for the reasons stated above the decision to refuse your clients application on 12 September 2012 is maintained. Your client has no legal basis to remain in the United Kingdom and should make arrangements to leave the United Kingdom immediately.”

The Claimant raises three grounds of challenge to the SSHD’s decision of 11 December 2013 contained in the Decision Letter:-

Consideration by reference to Paragraph 276ADE and Appendix FM to the Immigration Rules

In Singh and Kalid (in which Mr Malik appeared for the Appellants) the Court of Appeal found, in relation to the rules introduced by HC 194, that the SSHD was entitled, from 6 September 2012, to take into account the provisions of Appendix FM and paragraphs 276ADE-276DH in deciding private or family life applications even if they had been made prior to 9 July 2012 (judgment at [50]). Accordingly, and as has already been noted, Mr Malik concedes that ground (1) cannot succeed at this level.

Independent and Proper consideration of Article 8 ECHR

A preliminary point to note is that the Amended Grounds themselves only take the point that “The Secretary of State gave no independent consideration to Article 8 on the basis that there were no exceptional circumstances in this case to warrant departure from the Immigration Rules” (see para 28), and in addition the points raised (by reference to MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985 (“MM Lebanon”)) have, to an extent, been overtaken by the Court of Appeal’s judgment in Singh and Khalid and Underhill LJ’s explanation (at [63] - [64]) of Aiken LJ’s comments in MM (Lebanon). The Claimant has widened his challenge under this head in his Skeleton Argument by reference to the facts of the Decision Letter:-

“9.

The Secretary of State in the present case acted unlawfully in failing to consider Article 8 independently in accordance with the case law. The circumstances of the Claimant were not fully covered under the Immigration Rules. The Secretary of State's view that the children of the Claimant's wife "are both adults and leading independent lives" and that there is no protected family life between them, the Claimant and his wife is inconsistent with the approach taken in Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 and AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89. The fact that the Claimant's relationship with the children was not covered under the Immigration Rules meant that the Secretary of State was obliged to have proper regard to it in assessing whether it would be proportionate to expect the Claimant and his wife to continue their family life in Pakistan. Further, the Secretary of State failed to engage with the evidence submitted by the Claimant with his application as to his wife's particular circumstances.”

It is necessary to consider Singh and Khalid in more detail in the context of the Claimant’s second ground of challenge as this involves a consideration of the so-called “two-stage approach” and the issue whether there always needs to be an independent consideration of Article 8 outside of the Rules. The “two-stage approach” to be adopted in any case where an applicant relies on his or her private life was summarized at paragraph 3 of the judgment of Underhill LJ in Singh and Khalid:

“It is now settled that the right course in any case where an applicant relies on his or her private or family life is to proceed by considering first whether leave should be granted under the relevant provisions of the new Rules and only if the answer is no to go on to consider article 8 in its unvarnished form (the so-called “two-stage approach”): see the line of cases which includes Izuazu (Article 8 – new Rules) [2013] UKUT 45 (IAC) and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 7200 (Admin) to which I will have to refer more fully below. Thus article 8 claims “outside the Rules” are still possible, though the scope for their operation is reduced.”

In Singh v Khalid the Court of Appeal considered the question as to how precisely the two-stage approach was to operate at paragraphs 60 to 70 of the judgment of Underhill LJ. He identified what was described as the “Isuazu/Nagre” approach at paragraphs 60 and 61, which merit quoting in full:-

“60.

I have referred at para. 3 above to the Secretary of State's intention that the requirements of the new Rules should in the generality of cases satisfy the requirements of article 8 of the European Convention of Human Rights , but also to her acknowledgment that that will not be so in every case, which gives rise to the “two-stage approach”. In Izuazu the Upper Tribunal (comprising Blake J, Lord Bannatyne and Upper Tribunal Judge Storey) gave the following guidance about the approach to be taken by tribunals to cases involving claims for leave to enter or remain on the basis of family or private life:

“40.We accordingly further endorse the Upper Tribunal's observation in MF [that is, MF (Article 8 — new rules) Nigeria [2012] UKUT 00393 (IAC)] that judges called on to make decisions about the application of Article 8 in cases to which the new rules apply, should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules.

41.

Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.

42.

When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.

43.

The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom.”

That passage refers to the approach to be taken by judges, but it of course applies equally to the Secretary of State and her officials as the primary decision-makers.

61.

The approach in Izuazu was endorsed in Nagre , which involved a generic challenge to the changes introduced by HC 194 on the basis that their effect was to exclude the possibility of claims which relied on article 8 “outside the Rules”. Sales J rejected that argument. I need not set out his reasons for holding that the Secretary of State was not inhibited from considering such claims. But he continued, at para. 29 of his judgment:

“Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.”

He proceeded, at para. 30, to set out the passage from Izuazu which I have quoted above, but he added this (consonantly with what he had said at para. 29):

“The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8 , it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 , there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules.”

In Singh and Khalid it was argued that what Sales J had said in Nagre at paragraph 30 of his judgment about it being unnecessary in every case to proceed to a substantial second stage was wrong, and had been disapproved by the Court of Appeal in R (MM) v Secretary of State for the Home Department [2014 EWCA Civ 985 (“MM”), and that the SSHD is obliged to consider the applicant’s Article 8 rights outside the law relying on the judgment of Michael Fordham QC, sitting as a Deputy High Court Judge, in R (Ganesabalan ) v Secretary of State for the Home Department [2014] EWHC 2712 (Admin) (“Ganesabalan”). After concluding that there was nothing in the observations of Aikens LJ in MM which cast doubt on Sales J’s basic point that there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues had been addressed in the consideration under the Rules, Underhill LJ turned to consider Ganesabalan and concluded that there was nothing in Ganesabalan that undermined Sales J’s point. He stated as follows in relation to Ganesabalan:-

“65.

I turn to Ganesabalan, on which Mr Malik relies in support of his third ground. That was a case where the new Rules applied and where the Secretary of State in her decision letter had, as in Ms Khalid's case, rejected the claimant's application under article 8 simply on the basis that he could not satisfy the requirements of paragraph 276ADE or Appendix FM and had given no express consideration to whether he had an article 8 case outside those Rules. The claimant said that that was inconsistent with the guidance in Izuazu and Nagre. The Secretary of State argued that Sales J's observations at para. 30 of his judgment in Nagre meant that such consideration was unnecessary. Mr Fordham rejected that argument and quashed the decision. At para. 9 of his judgment he summarises the position in law as follows:

“Where a person seeks leave to remain, relying on private life or family life or both, and relying on Article 8 , and where the claim fails at the first stage by reference to the applicable Immigration Rules (Appendix FM and Rule 276ADE):

(i)

There is always a “second stage” in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so.

(ii)

The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstances of the individual case.

(iii)

In a case in which the consideration or reasoning is legally inadequate, and leaving aside cases in which there is a right of appeal to a tribunal, it is open to the Secretary of State to resist the grant of judicial review if she is able to demonstrate that the decision would inevitably have been the same.”

In connection with point (1), Mr Fordham, at paras. 21-30 of his judgment, conducts a careful examination of the relevant cases, including Nagre, with a view to establishing that, even where the decision-maker is entitled to conclude that a separate consideration of article 8 outside the Rules is unnecessary because all the issues raised have been dealt with at the first stage, a conscious decision to that effect is required.

66.

Point (3) in Mr Fordham's summary broadly reflects earlier authorities, though there is a fuller and more authoritative exposition in the judgment of Beatson LJ in Haleemudeen , at paras. 59-61. I would not disagree with either of points (1) and (2); but I am conscious of how practitioners in this field can sometimes seek to exploit even the faintest ambiguity, and I would accordingly wish to make three comments about point (1):

(1)

I should emphasise – though it is in truth entirely clear from the full judgment – that Mr Fordham's statement that “there is always a second stage” does not in any way qualify what Sales J says at para. 30 of his judgment in Nagre. Sales J's point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again. Mr Fordham's point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed. I agree with both points.

(2)

The statement that the decision-maker “must be in a position to demonstrate” that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision. If the decision-maker's view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so.

(3)

It may not be entirely apt to describe a decision as to whether article 8 requires that an applicant be given leave outside the Rules as an “exercise of discretion”.

67.

In short, neither MM (Lebanon) nor Ganesabalan undermines the point made by Sales J in para. 30 of his judgment in Nagre, which in my view, together with his endorsement of the approach in Izuazu, remains good law.”

At paragraph 69 of his judgment Underhill LJ stated that he agreed with Mr Fordham in Ganesabalan that a decision maker must in every case where an application is advanced under Article 8 consider whether the first-stage consideration under paragraph 276ADE and/or Appendix FM addresses all the Article 8 issues raised, even if the result of that consideration is simply to state that it does.

In summary, therefore, there will be cases where it is clear that consideration under the Rules has fully addressed any family or private life issues arising under Article 8, and where that is so it would be sufficient for the SSHD to say so (and the SSHD would need to expressly say so in that situation), but where after consideration under the Rules there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.

A further issue arose in Singh v Khalid as a result of the fact that there was no record of any consideration whether Ms Khalid’s claim under Article 8 involved issues that were not adequately addressed by reference to the Rules. This was an accepted procedural failure but Mr Blundell for the SSHD submitted first that a procedural failure of this character did not necessarily render the SSHD’s decision unlawful, and the Court was concerned not with the quality of the decision-making process but whether the claimant’s rights had been violated, and secondly there was no basis for challenging the conclusion of the instance judge (Professor Andrew Grubb QC sitting as a Deputy High Court Judge) that the matters pleaded did not amount to a viable case that the refusal of leave to remain was disproportionate. As to the former point Underhill LJ agreed with Mr Blundell’s submission, addressing the issues that arose at paragraphs 70 and 71 of the judgment:

“70.

However, Mr Blundell submitted that a procedural failure of this character did not necessarily render the Secretary of State's decision unlawful. He relied on the decisions of the House of Lords in Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 19 , and R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23, [2010] 1 AC 1, which establish, to quote from the headnote in Nasseri , that “when a claimant seeking judicial review alleged infringement of a Convention right the court was concerned not with the quality of the decision-making process but with whether the claimant's rights had been … violated”. Thus it did not matter whether the Secretary of State had failed consciously to consider whether Ms Khalid had an article 8 claim outside the Rules unless there was in fact such a claim – or, since we are concerned with a permission application, whether it is arguable that there was. That question was directly considered by Professor Grubb in his judgment in the present case (albeit that he came to it by a somewhat different route), and he concluded that her claim was indeed hopeless: see para. 26 above.

71.

In my view Mr Blundell is right that the present case falls within the principles stated in Miss Behavin' and Nasseri . Ms Khalid's claim was, in the relevant respects, outside the Rules, and she can only challenge the Secretary of State's decision by showing a substantive breach of her rights under article 8 . That is in form a different approach from that advanced by Mr Fordham at point (3) of his summary in Ganesabalan , since he treats the failure of the Secretary of State to consider the claim outside the Rules as itself rendering her decision unlawful, though if the overlooked claim was hopeless the Court would not grant relief. But in substance the two approaches come to much the same thing. The appeal should be allowed if Ms Khalid had an arguable article 8 claim outside the Rules but not if she did not.”

As to Mr Blundell’s second point, Underhill LJ pointed out that Ms Khalid did not in fact have permission to challenge the first instance judge’s conclusion that she had no arguable case on Article 8 outside the Rules. However he concluded that he would not in any event have felt able on the basis of the limited materials as were before the court to say that Professor Grubb was wrong to conclude that the matters pleaded did not amount to a viable case that the refusal of leave to remain was disproportionate. He did, however, go on to consider the available factual material, and referred to the guidance of Sales J in Nagre in precarious family life cases, and Article 8:

“73 I do not believe that the points on which Mr Malik relies are open to him. They do not reflect the way that the case was put before the Judge or the basis on which he was given permission. They were not raised in his skeleton argument for the hearing before us and only emerged in response to questions from the Court. In any event, I would not have felt able on the basis of such limited materials as are before us to say that Professor Grubb was wrong to conclude that the matters pleaded did not amount to a viable case that the refusal of leave to remain was disproportionate. Even if she was still (just) a minor when her visa expired Ms Khalid was an adult when she married and she should have been well aware that she had no right to remain and that her immigration position was precarious. In Nagre Sales J carried out a careful review of the Strasbourg case-law and concluded, at para. 42, that it indicated that

“… in a precarious family life case, where it is only in “exceptional” or “the most exceptional” circumstances that removal of the non-national family member will constitute a violation of Article 8 , the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purposes of Article 8”.

The Judge plainly had that guidance in mind. It is now well established that it is not necessarily disproportionate for a spouse to be required to leave the country to obtain entry clearance from abroad: see Secretary of State for the Home Department v Treebhowan [2012] EWCA Civ 1054 .”

The Claimant relies upon the decisions in Ghising (family life - adults - Gurkha policy UKUT 00160 (“Ghising”) and AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89 (“AP (India)”) in relation to SSHD’s consideration of the adult children of the Claimant’s wife, and the question of family life. In relation to Ghising Mr Malik draws my attention to the findings made in that case at paragraph 72 in relation to Article 8 family life:-

“In our judgment, the evidence as at the date of the hearing establishes that the Appellant and his parents genuinely enjoy a close-knit family life, in which they value and depend upon each other, for mutual support and affection. On the basis of the authorities we have cited above, this is sufficient to engage Article 8. Although their family life was interrupted when the Appellant came to the UK to study, the Appellant remained financially and emotionally dependent upon his parents during that period, and their normal family life resumed as soon as his parents were able to settle in the UK”.

Those findings were on the basis of the facts specific to that case. The issue under Article 8(1) is highly fact sensitive, as the Upper Tribunal stressed in that case at paragraph 62:

“The different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive. In our judgment, rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1). As Wall LJ explained, in the context of family life between adult siblings:

“We do not think that Advic is authority for the proposition that Article 8 of the Human Rights Convention can never be engaged when the family life it is sought to establish is that between adult siblings living together. In our judgment, the recognition in Advic that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both Adjudicators and the IAT to identify the nature of family life asserted, and to explain, quite shortly and succinctly, why it is that Article 8 is or is not engaged in a given case. (Senthuran v Secretary of State for the Home Department [2004] EWCA Civ 950).”

In AP (India) McCombe LJ at paragraph 45 expressed himself in terms which also make clear that individual cases have to be considered on their own facts:

“45.

It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while (as the FTT put it) they seek to “make their own way” in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.”

At paragraphs 51 and 52 of her judgment in AP (India) King LJ stated as follows in relation to young adults:-

“51.

Elias LJ and McCombe LJ both give examples of categories of young people where it is common place for them to remain fully integrated within their nuclear family life after the age of 18 years. It is now well recognised that many young people in their twenties continue to live ‘at home’ long after a time which would have been the case 10 or 15 years ago, a state of affairs which impacts on families regardless of their cultural heritage, educational or employment status.

52.

I agree with the view expressed by Elias LJ at paragraph 26 of his judgment that the “Tribunal must in an appropriate case be entitled to make common sense inferences about what is likely to happen in the future based on the facts as they were before the entry clearance officer”. In my judgment such an inference, if it is not to be mere speculation or an unhelpful generalisation, can only be safely made against the backdrop of contemporary cultural and society mores. In most cases such an inference will be a straight forward common sense view based on the facts before the entry clearance officer but may, in certain circumstances, require evidence.”

I regard the second ground as unarguable. The assertion in the amended grounds, re-iterated in paragraph 9 of the Claimant’s Skeleton Argument, is that the SSHD acted unlawfully in failing to consider Article 8 independently. That assertion is simply wrong. The SSHD did consider, and expressly stated that she had considered, Article 8 independently. Hence the Decision Letter provided:

“It has also been considered whether the particular circumstances set out in your clients application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. We have also taken into account the need to safeguard and promote the welfare of children in the United Kingdom in accordance with our duties under section 55 of the Borders, Citizenship and Immigration Act 2009.

We acknowledge that your client’s spouse has 2 children in the United Kingdom, however, they are both adults and leading independent lives. Therefore there is no reason why your client and his partner cannot return to Pakistan together. Whilst this may involve a degree of disruption to their private life, it is considered to be proportionate to the legitimate aim of maintaining effective immigration control and is in accordance with our section 55 duties. It has been decided that a grant of leave outside the rules is not appropriate. Your client’s application for leave to remain in the United Kingdom is therefore refused.” (Emphasis added)

Thus, on the facts there was an actual consideration of Article 8 independently of the Rules. In such circumstances the question of whether the SSHD was obliged to carry out such a consideration under the “two-stage test” does not strictly arise. As has already been noted, “there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules.” (Singh and Kahlid at [64]). In the present case the scope for a grant of leave as a partner of a British citizen is fully addressed in the Rules, and was addressed in detail in the Decision Letter. In this regard whilst there is no reference to the wife’s health condition, Mr Malik accepted that it was not being suggested that the Claimant’s wife would be unable to join him in Pakistan, and the context in which her health had been raised was as a reason for the Claimant claiming exemption from an English language test.

However I accept that as the Claimant’s relationship with his wife’s adult children is not covered by the Immigration Rules it was necessary for the SSHD to have had regard to this as part of an independent consideration under Article 8 (to the extent that she had not considered such factors already and concluded and stated that her first-stage consideration had addressed the Article 8 issues), but this she clearly and expressly did reading the Decision Letter as a whole. The Decision Letter expressly stated, “We acknowledge that your client’s spouse has 2 children in the United Kingdom, however, they are both adults and leading independent lives” which echoed what the SSHD had already stated earlier in the Decision Letter that, “We acknowledge that he is in a genuine and subsisting relationship a British Citizen, and that his spouse has 2 children that are currently residing in the United Kingdom. However, her children are both adults and leading independent lives; therefore it is asserted that there are no insurmountable obstacles to family life preventing the relationship from continuing outside of the United Kingdom”. Having considered such matters the SSHD concluded that there was no basis for granting leave in reliance on Article 8. I do not consider she acted unlawfully in reaching that conclusion having regard to the (limited) information before her.

It is clear from Ghising that Article 8 is highly fact specific, and in circumstances where the adult children were 25 and 24 at the time, on the limited evidence available she was, in my view, entitled to reach the conclusion that they were adults leading independent lives, and that it would be proportionate to expect the Claimant and his wife to continue their life in Pakistan. However even if there was any force in Mr Malik’s criticisms of the SSHD in relation to her consideration of the children and family life (in the context of the fact that she does not refer to matters stated by the Claimant in the Claimant’s “Additional Grounds”) the court is ultimately not concerned with the quality of the decision-making process but with whether the Claimant’s rights had in fact been violated (see Singh and Khalid at [64]), and I do not consider that there is any viable case that it was disproportionate for the Claimant to be required to leave the country to obtain entry clearance from abroad on the facts as set out in the Decision Letter, nd as revealed in the application.

For the above reasons I would have dismissed this ground of challenge, had the application been allowed to proceed.

The SSHD’s approach to Paragraph 276ADE

The Claimant alleges that the SSHD adopted a legally flawed approach to Paragraph 276ADE of the Immigration Rules on the basis that when considering whether the Claimant, “has no ties (including social, cultural or family) with” Pakistan, for the purpose of Paragraph 276ADE(vi), she failed to undertake a rounded assessment of all relevant circumstances and made her decision (it is said) solely on the basis of the length of time the Claimant has spent in Pakistan.

Mr Malik relied upon the principles identified by the Upper Tribunal in Ogundimu (Article 8 -new rules) Nigeria [2013] UKUT 00060 (IAC) (“Ogundimu”) and Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 42 (Bossadi”) . In this regard he referred me to the respective headnotes for the principle that there should be a “rounded assessment”. That in Ogundimu provides: “Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances.”, whilst that in Bossadi provides that Paragraph 276ADE (vi), “requires a rounded assessment as to whether a person’s familial ties could result in support to him in the event of his return, an assessment taking into account both subjective and objective considerations and also consideration of what lies within the choice of a claimant to achieve.”

Mr Malik also referred to the SSHD’s published policy “long residence and private life v11.0". That policy, at page 58, provides as follows:

“Assessing whether there are ‘no ties’ (including social, cultural or family) with the country of origin

When you assess whether an applicant has ‘no ties’ (including social, cultural or family) with the country to which they would have to go if required to leave the UK a ‘tie’ means more than just having the nationality of the country, or having remote or abstract links to the country. It involves there being a continued connection to life in that country, something which ties an applicant to their country of origin.

In considering whether there are social, cultural or family ties, the factors you must consider are:

•

the length of time a person has spent in the UK

•

the length of time the person has spent in the country to which they would have to go if required to leave the UK

•

the exposure the person has had to the cultural norms of that country

•

whether the person speaks the language of that country

•

the extent of the family and friends the person has in that country, and

•

the quality of the relationships the person has with those family members and friends.”

It will be recalled that in the specific context of Paragraph 276ADE (vi), the SSHD stated in the Decision Letter:-

“Having spent 36 years in Pakistan and in the absence of any evidence to the contrary, it is not accepted that in the period of time that your client has been in the UK he has lost ties to his home country and therefore the Secretary of State is not satisfied that your client can meet the requirements of Rule 276ADE(1)(vi).”

The Decision Letter also referred to the Claimant’s immigration history, which identified how long he had been in the UK, and the fact that he was in a genuine and subsisting relationship with a British citizen and that his spouse had 2 adult children currently living in the UK.

The SSHD only had available to her what information and evidence had been provided to her by the Claimant. The Claimant put forward no information or evidence regarding any absence of ties to Pakistan and has not put forward any information or evidence to that effect since. Whilst the Claimant’s application was made on 3 April 2012 before Paragraph 276ADE came into force; in the context of his application for leave to remain, and his reliance on Article 8, it was for the Claimant to provide any information and evidence as to his lack of ties to Pakistan if in fact he had a lack of ties. Given that the Claimant is a Pakistani national who has spent 36 years in Pakistan and has only recently come to the UK (in circumstances which the SSHD expressly addresses elsewhere in her Decision Letter and expressly refers to the Claimant’s application), and given “the absence of any evidence to the contrary” from the Claimant (as the SSHD identified), I consider that the conclusion that the SSHD reached, which was that it was not accepted that the Claimant had lost ties to his country, was a common sense conclusion that was open to the SSHD, and which discloses no error of law on her part. In the circumstances there was no evidence before the SSHD from the Claimant that would have allowed any more rounded assessment than the assessment she undertook. I consider the challenge on this ground to be unarguable, and I would have dismissed it, had the application been allowed to proceed.

My final observation on this ground is that if the Claimant wished to put forward an application which engages with any lack of ties with Pakistan he could of course do so together with evidence in support, and the SSHD would no doubt consider the same.

I have dismissed the application for judicial review having refused the Defendant relief from sanctions. In any event I would not have allowed a claim for judicial review to proceed on the basis of the amended grounds which infringe the Bhatti principles, and which are in any event not arguable in my view for the reasons I have identified. If the claim for judicial review had been allowed to proceed it would stand to be dismissed on all three grounds advanced, and for the reasons I have given.

I should be grateful if the parties would agree a draft Order for the Court’s consideration and approval which should also deal with costs to the extent agreed.