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

For an application for indefinite leave to remain under the Immigration Rules, compliance with employment requirements is assessed at the date of the Secretary of State’s decision, rather than when the application was made. A decision may remain lawful where an earlier erroneous reason is immaterial because another failure to satisfy the Rules independently justifies refusal. Where a later reconsideration is treated as a fresh refusal and is non-appealable, judicial review may nevertheless provide adequate legal redress. The absence of evidence showing that the refusal was unlawful, or that relevant circumstances had changed, justifies dismissal of the claim.

The claimant, a work permit holder, sought judicial review of the Secretary of State’s refusal of indefinite leave to remain for himself and his dependants. His application was initially refused on 31 May 2012 under paragraphs 134 and 135 of the Immigration Rules, including because he was unemployed. After reconsideration, the Secretary of State issued a letter dated 25 October 2012 maintaining the refusal, acknowledging that the work permit had been reinstated but relying on the claimant’s unemployment.

The claimant argued that the October letter was a fresh appealable decision and that delay in determining the application had operated unfairly. The central issues were which decision was legally relevant, when compliance with the employment requirements had to be assessed, and whether judicial review supplied an adequate remedy.

1. The claim was dismissed. The relevant decision was the refusal dated 31 May 2012. Under paragraph 135 of the Immigration Rules, the Secretary of State was entitled to refuse indefinite leave to remain by reference to the claimant’s failure to satisfy paragraphs 134(iii) and 134(iv).
2. Compliance with those requirements had to be judged at the date of the decision, not at the date when the application was submitted. The claimant’s unemployment independently justified refusal, so the erroneous statement that his work permit had been revoked was immaterial.
3. Alternatively, if the letter dated 25 October 2012 constituted a separate and effective refusal, that decision was also lawful for the same reason. At that date the claimant remained unemployed and did not satisfy paragraphs 134(iii) and 134(iv).
4. Although the October decision had been treated as non-appealable, judicial review provided an adequate means of legal redress and was not less effective than an appeal. The claimant produced no material establishing unlawfulness or any relevant change in circumstances since the May decision. It was accepted that an appeal to the First-tier Tribunal would not succeed on the evidence then available.
5. Any consequential applications were to be made in writing within seven days of hand-down.

The claim was brought directly for judicial review. Permission was granted on paper on 10 June 2013 by Mr Michael Kent QC, sitting as a Deputy High Court Judge. The Administrative Court dismissed the claim.