Gayle, R (on the application of) v The Secretary of State for the Home Department, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3385 (Admin)

Resolution Date:December 21, 2017
Issuing Organization:Administrative Court
Actores:Gayle, R (on the application of) v The Secretary of State for the Home Department
 
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Case No: CO/4255/2013

Neutral Citation Number: [2017] EWHC 3385 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

HIS HONOUR JUDGE WALL QC

(sitting as a Judge of the High Court)

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Between :

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Rebecca Chapman (instructed by Wilson Solicitors LLP) for the Claimant

Christopher Staker (instructed by the Government Legal Department) for the Defendant

Hearing date: 7 December 2017

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Judgment

His Honour Judge Wall QC :

  1. On 6th June 2017 David Elvin QC (sitting as a Deputy High Court Judge) granted the Claimant permission to bring Judicial Review proceedings in relation to the Defendant's decision of 11th October 2016 to grant her 30 months leave to remain in the United Kingdom as opposed to the indefinite leave to remain she had sought. In granting permission, the Judge specifically excluded any ground relating to the rationality of the decision.

  2. The Claimant has a tragic personal history. She is a Jamaican national who moved to this country in 2000. Prior to her relocating to the United Kingdom she had been abused by more than one person. She was further abused by her partner in this country until he was deported to Jamaica in 2006. She had two male children who have died young. The first was living in the USA and died leaving a number of young children behind him. The second, Gary Scott, was murdered in London when he was only 17 years old and at a time when he was living with his mother.

  3. The Claimant's relevant immigration history is as follows. On 14th August 2000 the Claimant and her son Gary arrived in the UK as visitors on a six moth visa. Once that period had expired they remained here as over-stayers. In 2011 the Claimant and her son applied for leave to remain, which was granted on 25th January 2013 for a period of 30 months. Initially it was granted on the basis that she was to have no recourse to public funds but thereafter (on 24th July 2014) that limitation was removed. The Claimant's son was later killed. Thereafter, on 16th November 2016, the Defendant granted the Claimant a further 30 months leave to remain outside of the rules.

  4. The challenge to the decision is brought on two bases. Firstly, that there was uncontested medical evidence that the Claimant had long-standing mental health difficulties and that her perceived uncertainty about her long-term immigration status was having a significant and deleterious effect on her treatment and possible recovery. It was submitted that the Defendant's decision had not referred to or analysed that evidence properly and thus had not taken it into account. Secondly, that Article 8 is engaged and that failing to grant indefinite leave to remain breached the Claimant's Article 8 rights.

  5. The applicable law is agreed. The Defendant has under s3(b) Immigration Act 1971 a discretion to grant anyone indefinite leave to remain in the United Kingdom. She has this discretion whether or not the case of any claimant fits within the Immigration Rules. The grant of limited leave to remain in this case was initially made in 2014 under the Immigration Rules (paragraph D-LTRP1.2 of Appendix FM). The Rules provide that a person must spend 120 months in the United Kingdom with successive periods of limited leave under this category before being considered for indefinite Leave to remain (``ILR'') (IR para E-ILRPT1.3 of Appendix FM). In 2016 leave was granted outside of the Rules because, on the death of her son, the Claimant could not succeed within the Rules. The Defendant has published guidance on granting leave outside of the Rules in two documents entitled ``Immigration Directorates' Instructions Chapter 1 Section 14'', and ``Appendix FM 1.0 Family Life and Private Life: 10 year routes''. The former document sets out that such leave should only be granted when ``reasons are particularly compelling'' (see para 1.2). The policy records that the grant of limited leave to remain under this policy should not ``convey any expectation of further leave or eventual settlement'' (see para 3.1.). The decision maker is to consider ``each case on its merits'' (see para 2.2) and grant leave outside of the Rules for ``genuinely compassionate and circumstantial reasons'' (see para 2.2). Leave is only to be given indefinitely if ``the particular compelling circumstances of the individual case are such that it is almost certain that there will be no change in circumstances within five years'' (see para 3.2). The latter document records that ``unless there are truly exceptional reasons the expectation is that applicants should serve a probationary period of limited time before being eligible to apply for ILR'', but that ILR can be granted where there are ``particularly exceptional or compelling reasons'' to grant it. Further it sets out that ``in cases not involving children there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months' leave to remain''.

  6. Therefore, in this case the questions to be addressed by the decision maker were whether...

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