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It was a disproportionate interference with the Claimant's Article 8 ECHR rights to require her to leave the country to apply to vary the basis for her leave to remain.
18 April 2013
(1) The Claimant, a Chinese national, entered the UK in September 2003. She was permitted leave to remain as a student. In 2009, the Claimant was issued with a certificate of sponsorship to work as a research associate at the University of Ulster. The Claimant thus submitted an application to remain as a skilled worker under the Tier 2 (General) Migrant category. This application was successful. The Claimant had her employment terminated in 2011 due to a lack of funding, in this year she also married Dr Ng.
(2) The Claimant was offered a different position at the University, but they stated that she must have leave to be in the UK on a visa not dependent upon a sponsorship certificate.
(3) At that point, the Claimant's husband was applying for an extension of his visa under the Tier 1 (Post-Study Work) category. As the Claimant was confident that her husband would succeed in his application, she decided to seek her status to be re-categorised to ‘Partner of a Relevant Point Based System Migrant', thereby fulfilling the demand of the University.
(4) The prospect of possibly having to return to China and be separated from her husband caused the Claimant to be diagnosed with mild depression. She returned to China in September 2011 (her leave to remain was due to expire in November) and made her application for entry clearance under the ‘partner' category. Clearance was granted and was communicated to the Claimant in November 2011. Unfortunately, the University had withdrawn the job offer by this point.
(5) The Claimant challenged the legality of Rule 319C(h)(i) of the Immigration Rules, which her solicitors had advised required her return to China to make her application for a ‘partner' visa.
(6) The Defendant argued that the Claimant had not exhausted her alternative remedies before returning to China: namely, she had not argued that the status could be changed without her leaving the country, or that the Defendant could exercise her discretion to allow her to remain in the country.
(7) HELD: The Court did not find the Defendant's arguments appealing. Rule 319C(h)(i) of the Immigration Rules could not lead to any conclusion other than that a Claimant must leave the country if she wishes to change her status from general leave one to that of a partner. No amount of argument would have persuaded the Defendant that this was not the case.
(8) Given this, and the consistent stance of the Defendant in this regard, the Claimant's advisors had rightly concluded that there was no realistic prospect that they could successfully apply for the Defendant not to apply the requirement to leave the country.
(9) The suggestion that the Claimant should have applied ‘outside the rules' was held to be no more attractive. The option of using the Defendant's discretion was not a ‘universal panacea'. Further, the Defendant had consistently maintained that the discretion would not be exercised in this case. Consequently, the Court did not consider that the failure of the Claimant to pursue the alternative remedies available barred this application.
(10) The Court said that in any event it would have considered the application for judicial review on the basis that the Claimant ‘genuinely and reasonably' believed that the Rules precluded her from making an ‘in country' application.
(11) The Court concluded that except for in very specific cases, removing a person to their home country would involve a disproportionate interference with their right to a family life under Article 8 ECHR. The blanket requirement to leave the country, as required by the wording of Rule 319C(h)(i) was held to be unsustainable.
(12) The Court stated that it was not proportionate to require the Claimant to leave the country to apply for entry clearance. The Claimant's Article 8 rights were said to be engaged.
(13) The Court did not quash the rule, which was said to be a matter for the Home Secretary. Nonetheless, the rule could not lawfully be applied to the Claimant in this case.
 - Defendant's submissions unappealing.
 - Leave country.
 - Consistent stance.
 - No realistic prospect disapply requirement.
 - Outside rules.
 - Genuine and reasonable belief.
 - Leave country unsustainable.
 - Not proportionate to require to leave the country.
 - Article 8.
 - Conclusion.
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