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

For continuous lawful residence, a material interruption in immigration status prevents the required period from being established. The Secretary of State may exercise discretion to overlook an interruption, but the decision must show consideration of the material circumstances and must not be irrational or perverse.

A certification decision is lawful where the Secretary of State has considered the available evidence, applied anxious scrutiny and reasonably concluded that an appeal would be bound to fail. Detention pending removal is not arguably unlawful where removal is otherwise available and no established public-law error affects the underlying immigration decision.

The claimant sought permission to apply for judicial review of the Secretary of State’s refusal and certification of his application for indefinite leave to remain, and of his detention pending removal.

He argued that he had completed, or should be treated as having completed, ten years’ continuous lawful residence. He also contended that the Secretary of State had failed to consider material matters, had acted irrationally, had unlawfully certified the claim, and had unlawfully detained him. The court considered whether any of those grounds was arguable.

1. Adjournment. The court refused an application to adjourn so that a different accompanying letter could be considered. The two versions made no material difference to the substance of the claim.
2. Continuous lawful residence. The claimant’s visa expired on 3 May 2009. His subsequent applications were refused or rejected, and further leave was not granted until 19 May 2011. His residence was therefore not lawful continuously for ten years. The interruption was substantive rather than merely technical and disqualified the relevant period under the applicable rules.
3. Discretion and material considerations. The decision letter addressed the immigration history, the interruption in lawful residence and the request for discretion. Its statement that all evidence and information had been considered was sufficient on the evidence before the court. There was no arguable failure to consider a material matter, nor any arguable irrationality or perversity.
4. Certification. The Secretary of State had approached certification on the relevant principles and with anxious scrutiny. Although the certification section did not repeat every detail, the decision stated that all available evidence had been considered. On the findings recorded, an appeal to the First-tier Tribunal would be bound to fail. The certification was therefore not arguably unlawful.
5. Detention and order. Detention on 4 November 2016 pending imminent removal was not arguably unlawful or irrational. Removal was not prevented before these proceedings began, and the claimant was subsequently granted bail. The application for judicial review was refused, with costs of £600 payable by the claimant to the defendant.

The judgment describes an earlier refusal of permission to seek judicial review on 27 January 2011 and a later renewed application. The present court refused permission to apply for judicial review and refused the claim.