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

THE DEPUTY JUDGE: In this matter the claimant applies for permission to apply for judicial review of the defendant's decision to refuse and certify his application for indefinite leave to remain dated 27 September 2016 and his detention on 4 November 2016 pending his removal. The claim was filed on 16 November 2016.

Today Mr Nasim, who appears for the claimant, has raised a point that the letter enclosing the bundle at page 77 was not the letter that accompanied the application for indefinite leave to remain, but it was another letter, a copy of which has been produced this morning to the Secretary of State, who is represented by Mr Fisher. The difference is that the letter of 16 June, with a copy of which I have been supplied, specifically refers to a High Court judgment in 2011 and to a statement of Mr Mohammed Basharat. However, in the documents submitted as part of the claim was a statement by the claimant which expressly deals with that judgment and his grant of leave to remain thereafter from May 2011.

In the body of the letter of 17 May 2016, it was claimed that the claimant had established lawful residence subject to the curtailment of his licence for the circumstances set out in that letter, and that discretion should be exercised on the basis that he had in fact completed the 10 years' lawful residence by 20 August 2016. In the letter produced this morning the same point was effectively made, and in the body of that letter there is effectively no difference in the reference to the judgment of the High Court.

In these circumstances, in my judgment, it would not be appropriate to adjourn this matter today, because in effect, even if the letter was the one a copy of which is produced today, in my judgment it would make no overall difference to the outcome of this claim. I accordingly refuse the application to adjourn this matter for that additional document to be put in for consideration by the court.

The reasons for the decision to refuse and certify are set out in the decision letter. The application, as I have indicated, was made on 17 June 2016 and on that basis it is contended that the 10 years would have been completed by 20 August 2016. However, the point in issue in this case, as the defendant explains in the decision letter, was whether there had been 10 years' lawful residence. As a matter of fact the claimant was not lawfully here for 10 years because his visa period expired on 3 May 2009 and his out-of-time application for leave to remain was refused on 22 July 2009. A further application was then rejected as invalid on 6 August 2009 and a further application as out of time on 17 September 2009. Judicial review was then sought but permission was refused on 27 January 2011.

The judge in refusing permission indicated that there was an arguable case to challenge the earlier decisions and their certification. However, by that time, the new sponsor had had its registration revoked so that the judicial review would be academic and permission was refused. However, the claimant remained without leave. He made two further applications for leave to remain. The first was refused and the second granted giving leave to remain as a Tier 4 (General) student from 19 May 2011 to 30 November 2013. On any analysis, accordingly, the claimant's residence was not lawful for the period from 2009 or even, if it was taken as the date of the refusal of permission to seek judicial review, 27 January 2011 to 19 May 2011. Accordingly, the requirement for a continuous period of lawful residence was not met and had been significantly broken in this case.

It is submitted that, as a matter of discretion, the defendant ought to have put that aside, and in particular based on the decision letter that she had failed to have regard to the reasons given by the deputy judge on 27 January 2011. The statement enclosed with the application expressly referred to that decision and on the evidence before the court the decision letter was included. However, if one looks at that decision letter, first it was giving reasons in the light of letters accompanying the application seeking discretion on the basis that there had in fact been 10 years' lawful residence without elaborating the point relying upon the reasons of the judge in January 2011. Moreover, the decision letter expressly says that the Secretary of State has considered all the evidence and information that had been provided. That included certain of the documents which accorded with the first version of the letter, it would appear, but did not refer either expressly to the statement or to the High Court decision.

It then went on to consider the immigration history, including specifically the break in lawful residence. In that context it then considered whether the exercise of discretion was appropriate having regard to the fact that the claimant could not demonstrate 10 years' continuous lawful residence. On that basis, in the light of the matters submitted, the Secretary of State concluded there were no exceptional reasons that had been provided for submitting an application more than 28 days out of time or otherwise to exercise her discretion in the circumstances.

In my judgment, there is nothing on the face of this letter that indicates that the Secretary of State had not taken into account the material matters put before her. This was not a mere technicality; it was plainly a matter of substance in terms of the break in lawful residence which disqualified that period under the rules. In my judgment, there is no arguable ground either that the defendant failed to have regard to a material consideration or acted irrationally or perversely in the conclusion to which she came.

Further, as to certification, there is no arguable ground for saying the defendant failed to approach the question on the relevant principles applying anxious scrutiny. Although the details were not repeated in that section of the decision letter, the defendant states that it is after considering all the evidence available to her. It is not arguable that on the findings in the letter that the conclusion to which she came was not open to the defendant. The claim was clearly unfounded in the sense that any appeal to the First-tier Tribunal would be bound to fail. Therefore, there is no arguable basis for concluding that the decision to certify the claim was unlawful.

As to detention, in the light of the above the decision to detain the claimant on 4 November 2016 for his imminent removal was not arguably unlawful or otherwise irrational. There was nothing to prevent the removal, at least until these proceedings were commenced, following which he was granted bail by the First-tier Tribunal on 9 December 2016. In those circumstances, the application is refused.

I think in this case the decision on the papers left the decision to be reconsidered today. Is that right?

MR FISHER: My Lord, there was an order for £600.

THE DEPUTY JUDGE: Did it say it had to be reconsidered if it is renewed?

MR FISHER: It only said a reconsideration if within 14 days the claimant notifies the court he objects to paying costs.

THE DEPUTY JUDGE: Right. So the answer is it does not fall to me to reconsider it?

MR FISHER: Not on my reading of the costs.

THE DEPUTY JUDGE: No. It does, if you read it. "Where a claimant seeks a reconsideration, costs to be dealt with on that occasion." That is why it needs to be reconsidered now.

MR FISHER: My Lord, I apologise.

THE DEPUTY JUDGE: So do you make an application?

MR FISHER: I do make an application for the £600 which was set out in the acknowledgement of service.

THE DEPUTY JUDGE: So far as principle is concerned?

MR NASIM: My Lord, I have no observations.

THE DEPUTY JUDGE: There will be an order for costs to be paid by the claimant to the defendant in the sum which I assess at £600 of the preparation of the acknowledgement of service.