Joshi & Anor, R (on the application of) v Secretary of State for the Home Department

A purported application for further leave to remain may constitute a human rights claim where, in substance, it asserts that removal would breach Convention rights. The statutory definition turns on substance rather than form. A refusal of leave takes effect when written notice is given to the person affected. Pending that notice, leave may continue under section 3C of the Immigration Act 1971. Nevertheless, paragraph 16(2) of Schedule 2 permits detention where there are reasonable grounds for suspecting that the person is liable to removal, even if the person is not in fact an overstayer. Whether the grounds are reasonable may be assessed in the round.

The married claimants, Indian nationals who had held student-related leave, challenged the refusal of an application for further leave and their subsequent detention and proposed removal. The application referred to private and family life under article 8 of the ECHR. The Secretary of State treated it as a human rights claim and certified it clearly unfounded, thereby limiting the claimants to an out-of-country appeal.

The claimants argued that the refusal was a nullity, that their leave continued under section 3C of the Immigration Act 1971, and that their detention was unlawful. The court considered whether the refusal was invalid, when it took effect, and whether the immigration officers had reasonable grounds for detention.

1. The applications for judicial review were dismissed. Permission was formally granted because both issues raised were arguable.

2. The application of 4 March 2015 was a human rights claim within section 113(1) of the Nationality, Immigration and Asylum Act 2002. The claimant’s reference to private and family life under article 8 implied that removal or a requirement to leave would be unlawful. The statutory question was one of substance, not form. The reasoning in R (on the application of Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) was accepted insofar as it supported that approach.

3. The refusal decision was not a nullity. Under section 4(1) of the Immigration Act 1971, the refusal had to be exercised by written notice to the affected person. Proceeding on the prudent basis that the refusal took effect on service, the claimants’ leave was extended under section 3C until 11 June 2015.

4. The claimants were therefore detained for a short period while they still had leave. That did not make the detention unlawful. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 permits detention where there are reasonable grounds for suspecting that a person is liable to removal, even though the person is not in fact an overstayer.

5. The approach in R (Mohammed (Shahpoor)) v Secretary of State for the Home Department [2014] EWHC 4317, distinguishing mistakes of fact from mistakes of law, was considered too fine for the present case. The officers’ suspicions were reasonable when assessed in the round, so paragraph 16(2) protected the detention.