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

The 14-year residence policy confers a discretion. Long residence does not create an automatic entitlement where the applicant has deliberately evaded or circumvented immigration control, including through deception or sham arrangements. A human-rights claim based on Article 8 must be genuinely arguable and, where there is no entitlement under the Immigration Rules, removal will be disproportionate only in a truly exceptional case. A judicial review claim may be dismissed where the claimant fails to amend the claim to challenge a superseding decision, fails to pursue directions, and provides no coherent legal criticism. Costs may be awarded on the indemnity basis from the point at which the claim became plainly hopeless.

The claimant sought judicial review of removal directions issued after the defendant concluded that his indefinite leave to remain endorsement was counterfeit and that he had obtained immigration leave through deception. He relied on alleged residence in the United Kingdom for more than 14 years, a relationship with an EU national, and Articles 6 and 8 of the European Convention on Human Rights.

After permission was granted, the defendant issued a detailed decision letter considering the 14-year policy, exceptional leave, and the Article 8 claim. The claimant did not amend his claim form to challenge that letter, did not comply with the opportunity granted to investigate the alleged forgery, and failed to attend the hearing.

1. Application dismissed. The claimant had no arguable challenge to the decision letter or to the certification of his human-rights claim as clearly unfounded.
2. The 14-year residence provisions were discretionary. They did not require the defendant to grant indefinite leave to remain where there were countervailing factors, including deliberate attempts to evade or circumvent immigration control. The defendant was entitled to rely on the claimant’s alleged use of a suspect college, marriage of convenience and counterfeit immigration documents.
3. The alleged indefinite leave to remain was unsupported by the file, which contained a refusal of indefinite leave and an unsuccessful appeal. The alleged marriage was, on the claimant’s own account, no longer subsisting, and the evidence indicated that it had been a sham.
4. Article 6 did not apply to decisions concerning the entry, stay or deportation of aliens. The Article 8 claim was also unarguable. In the absence of an entitlement under the Rules, the claimant had to establish a truly exceptional case in which removal would be disproportionate. The asserted relationship was inadequately evidenced, and the claimant’s immigration history substantially weakened the claim.
5. The claim was also liable to dismissal because the claimant and his representatives failed to pursue the case after the adjournment granted by Bennett J. The defendant’s conditions for examining the tapes and immigration stamps were reasonable.
6. The claimant was ordered to pay the defendant’s costs. Costs were standard up to service of the decision letter dated 22 November 2004 and indemnity thereafter. The claimant’s solicitors and former solicitor were ordered to show cause why wasted costs incurred after 14 January 2005 should not be ordered against them.