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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

R (on the application of Mirza) v Secretary of State for the Home Department [2013] EWHC 2207 (Admin); (2013) PLLR 102

Immigration - Leave to remain - Guidance - Irrationality

The Secretary of State had plainly considered the necessary guidance as to length of residence when determining whether to grant the Claimant leave to remain.

24 July 2013

Administrative Court

Lord Carlile of Berriew QC

(1)        The Claimant sought judicial review of the Defendant's decision, dated the 10 February 2012, to refuse him leave to remain under the ‘legacy' programme and/or to consider his representations as a fresh claim.

(2)        The initial basis of the claim was:

(a)        the Claimant had a legitimate expectation that his case would be reviewed and concluded by July 2011;

(b)        the Claimant was entitled to indefinite leave to remain under the paragraph 395C of the Immigration Rules;

(c)        removal would be a disproportionate interference with the Claimant's Article 8 ECHR rights to a private and family life; and

(d)        the delay in communicating the legacy decision with reasons and the refusal of leave were unlawful and irrational.

(3)        Permission was only granted as to the question of whether the Defendant had provided sufficient reasons to demonstrate that regard had been had to the guidance as to the length of residence in the Enforcement Instructions and Guidance (‘EIG').

(4)        The Claimant relied upon an extensive period of residence in the UK as being a factor weighing against removal.

(5)        HELD: The Court held that the Defendant had been aware of the Claimant's presence in the UK from February 2008. The Court found that the Claimant had been in the UK illegally for 6 to 7 years, but had remained in the country in a deceptive manner. The Defendant was said to have plainly considered the relevant guidance, and the decision had been taken in a holistic manner and was within the Defendants lawful discretion. The application was thus refused.

Application refused

Key Paragraphs

[16] - Delay.

[20] - Deceptive. 

[20] - Considered guidance.

[21] - Conclusion.

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