TAA -v- Home Office (anonymity order)

Immigration and Asylum Chamber (Upper Tribunal)Anonymity Order

Case number: JR-2024-BHM-000140

In the Upper Tribunal (Immigration and Asylum Chamber)
Judicial Review

9 January 2025

Before:

Upper Tribunal Judge Pinder

Between:

TAA

-v-

Secretary of State for the Home Department


NOTIFICATION of the Judge’s decision (UT rule 30(1))

Following consideration of the documents lodged by the Applicant and the Acknowledgement of Service filed by the Respondent

Order by Upper Tribunal Judge Pinder:

  1. Permission is granted on all grounds.
  2. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Applicant is granted anonymity.
    No-one shall publish or reveal any information, including the name or address of the Applicant, likely to lead members of the public to identify the Applicant. Failure to comply with this order could amount to a contempt of court.
  3. Any person may apply to have the Anonymity Order, provided for at paragraph 2 above, varied or set aside, on notice to the (other) parties.

Reasons

(1) The Applicant seeks permission to challenge, by way of a judicial review application, the Respondent’s decision dated 3rd September 2024, to refuse his application for settlement made on 30th April 2024, and to instead grant him a period of 30 months’ further permission to stay as a refugee.  In brief, the Respondent refused to grant the Applicant ILR because he was convicted in 2015 and sentenced to a term of imprisonment of at least 12 months but less than four years.

Pre-liminary issue of limitation

(2) The Respondent raises as a preliminary matter whether the application was lodged in-time and in the alternative, ‘promptly’. Whilst the application was sealed by the Tribunal on 4th December 2024, this was submitted on the Tribunal’s online portal on 2nd December 2024. Rule 28(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 requires an application to be made promptly and to be sent or delivered to the Tribunal so that it is received no later than three months after the date of the decision. The application was therefore received by the Tribunal within the period of three months that applies against the Respondent’s decision of 3rd September 2024. With regards to the issue of promptness, I note that the Applicant wrote to the Respondent in pre-action correspondence on 8th November 2024 ([120]-[121]) and did not seemingly receive a response. In those circumstances, I do not consider it appropriate to refuse to admit this application as a result of any allegation that the Applicant did not act promptly.  Instead, if this issue is pursued by the Respondent, this may be relevant to the issue of costs – in the same way that any failure to reply to pre-action correspondence may also be.

The grounds of challenge

(3) The Applicant pursues three grounds of challenge:

(i) Flawed approach to the grant of limited leave to remain;
(ii) Fettering of discretion;
(iii) Failure to give reasons and irrationality.

(4) The Applicant received his criminal conviction and prison sentence in 2015. The Respondent granted the Applicant five years’ leave to remain as a refugee in 2019, in full knowledge of the Applicant’s criminal record ([97]).  It is arguable therefore that the Respondent has failed to give reasons as to why a different approach to the duration of leave granted to the Applicant should now be taken, if it is deemed that the Applicant does not qualify for ILR. It is arguable, for the reasons given at §61-62 of the grounds (under ground 1), that the Respondent’s approach is flawed. The Respondent maintains that Paragraph STP.5.2 applies, which the Applicant does not appear to contest. The Respondent does not otherwise appear to engage with the submissions made that the same rule permits the Respondent to grant the Applicant a “further period of permission to stay on a protection route for at least 30 months” (my emphasis). In other words, the Respondent is arguably not limited to grant of only 30 months’ permission to stay and she is arguably permitted to consider a longer grant of permission to stay.

(5) It is also arguable that the Respondent failed to consider exercising her discretion to grant the Applicant ILR, pursuant to her policy guidance referred to at §64, and as argued under ground 2. The Respondent argues in response that this ground is “misconceived because the Applicant’s legal representatives made no specific request in their further representations of 10th June 2024, submitted in support of the Applicant’s application for settlement dated 1st May 2024, that the Respondent considers a grant of leave outside the Immigration Rules” (§12).  At [70], the following is stated in the Applicant’s covering letter to his application dated 10th June 2024:

“Therefore, under the suitability requirement our client is not at this time entitled to indefinite leave to remain. However, we would request that the SSHD use their discretion in light of our client’s personal circumstances to consider granting indefinite leave to remain.”

Several factors were then addressed by the Applicant’s legal representatives to, on their case, justify a grant of settlement. There is arguably no indication from the Respondent’s decision that she considered the residual discretion available to her, and which had been very clearly requested of her.

(6) For the reasons above, it follows that the Applicant’s third ground alleging a failure to give reasons and irrationality is also arguable.

Anonymity

(7) I have granted the Applicant’s application for an Anonymity Order in favour of the Applicant. I consider that the specific facts of his application, including that this matter concerns the Applicant’s protection claim and other sensitive issues relating to his health and the family member raised in the application, are such that an anonymity order is a justified derogation from the principle of open justice.

Costs

(1) Reserved.

Notes for the Applicant

  1. To continue the proceedings a continuation fee of £847.00, or an application for help with fees if appropriate, must be lodged within 9 days of the date this order was sent (see below). Failure to pay the fee or lodge such an application within that period will result in the proceedings being automatically struck out.
  2. If permission has been granted on some grounds but refused on others, you may request that the decision to refuse permission be reconsidered at a hearing. Any such request must be made to the Tribunal in writing within 9 days of the date on which this notice is sent. Any such application must be accompanied by a further fee of £424 (in addition to the continuation fee) or an application for help with fees. The reconsideration hearing will be fixed in due course. However, if all parties agree – and the time estimates for substantive hearing allow – the reconsideration hearing may take place immediately before the substantive hearing. The Upper Tribunal must be notified that the parties agree to this course of action within 21 days of the date of the application for reconsideration.

Case Management Directions

  1. The respondent and any other person to whom this notice is sent who wishes to contest the claim or support it on additional grounds must provide the applicant and the Tribunal with detailed grounds for contesting the claim or supporting it on additional grounds, as well as any written evidence, within 35 days of the date on which this decision was sent (as given below).
  2. The applicant must file with the Tribunal and serve on the respondent any reply and any application to rely on further evidence within 14 days of the service of the detailed grounds for contesting the claim.
  3. The applicant must file with the Tribunal and serve on the respondent not later than 21 days before the scheduled date of hearing the following materials:
    (a) A skeleton argument which must be concise and must not exceed 20 pages, cross-referenced to the trial bundle;
    (b) A trial bundle which complies with the Guidance note on CE-file and electronic bundles, containing all evidence relied upon;
  4. The respondent and any other person wishing to make representations at the hearing must file with the Tribunal and serve on the applicant a skeleton argument not later than 7 days before the scheduled date of hearing.
  5. The applicant must file with the Tribunal and serve on the respondent not later than 3 days before the hearing an agreed authorities bundle, with index, containing all relevant provisions of primary or secondary legislation (including Immigration Rules); policies, guidance or other like instruments; and judicial decisions, whether favourable to the applicant or not.
  6. The parties are reminded of their obligations to reconsider the merits of their respective cases upon receipt of further evidence from the opposing party.

Listing Directions

  1. The earliest available hearing date will be allocated to the substantive hearing of this claim.
  2. The application is to be listed for ½ day; the parties to provide a written time estimate within 7 days of service of this order if they disagree with this direction.