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

Immigration Rules may change the regime governing a pending application where the new instrument contains no contrary transitional provision. But an error about the applicable Rules does not justify judicial review if the claim would inevitably fail under the correct legal framework. Article 8 private-life claims require evidence capable of showing a disproportionate interference. A refusal of leave need not ordinarily be accompanied by an appealable removal decision. A removal policy remains lawful if it preserves discretion for exceptional and compelling cases and is not applied as an inflexible rule.

An overstayer from Bangladesh challenged the refusal of leave to remain based on Article 8 private life. His application was made in June 2012 and refused in July 2013. Jeremy Baker J refused permission to seek judicial review, and Upper Tribunal Judge Allen refused permission on renewal. The appeal concerned the applicable version of the Immigration Rules, the need for further Article 8 consideration outside the Rules, and the lawfulness of refusing to make a removal decision.

Appeal dismissed. Lady Justice Black agreed with both judgments.

1. Applicable Rules. Aikens LJ held that the general rule identified in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230 applied to the later Statement of Changes. Since HC 565 contained no equivalent transitional provision, the 2012 Immigration Rules Bis, including paragraphs A277B and A277C, applied to the application, which remained pending until July 2013. The court followed the approach in Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 as preferred in Singh v Secretary of State for the Home Department and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74, subject to the later effect of HC 565.
2. Article 8 and materiality. Aikens LJ was prepared to assume that the application should instead have been considered under the old Rules and on Article 8 grounds alone. Even on that favourable assumption, the claim was bound to fail. There was no evidence of family life with the appellant’s cousin, virtually no evidence of private life, and nothing showing disproportionate interference. Any error in applying the Rules was therefore immaterial and could not justify judicial review. Underhill LJ also held that the appellant’s reliance on a qualification said to derive from R (MM) v Secretary of State for the Home Department [2014] EWCA Civ 985, [2015] 1 WLR 1073 was undermined by Singh.
3. Removal decision. There was no general obligation to make an appealable removal decision at the same time as refusing leave: Patel v Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651. The policy had previously been found lawful in R (Oboh and Patel) v Secretary of State for the Home Department [2014] EWHC 967 (Admin). The words will only did not convert the policy into an inflexible rule because it preserved the possibility of action where exceptional and compelling reasons existed, and the Secretary of State invited further evidence. No ground for judicial review was established.

1. Court of Appeal (Civil Division) — On 27 March 2015, the court dismissed the appeal from the refusal of permission to bring judicial review proceedings.
2. Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Allen refused permission on renewal on 7 January 2014.
3. High Court — Jeremy Baker J refused permission to seek judicial review on 17 October 2013.