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

Judgment

Andrew Thomas QC :

This is an application for judicial review of the Secretary of State’s decision refusing the Claimant leave to remain in the United Kingdom. The Claimant relies upon Article 8 ECHR and in particular the family life which he enjoys in this country with wife, his mother and his younger half-sister. The Claimant argues that the refusal of his application was irrational and unlawful.

The Claimant also relies upon an error of law in the determination of his application. By virtue of the June 2012 Statement of Changes in Immigration Rules (HC 194), revised rules came into force on 9th July 2012 (‘the new rules’). The Claimant’s application had been lodged before that date and transitional provisions indicated that the old rules ought to be applied to pending applications. The initial decision letter issued in March 2013 shows that the Defendant determined the application solely in accordance with the new rules. Although the decision has since been reconsidered twice by the Defendant on broader Article 8 grounds the Claimant argues that the later decisions are still influenced by the irrelevant consideration of the new rules. The issue is whether that has made a material difference to the outcome of his application.

Background

The Claimant is now 25 years old (born on 16th June 1989). He is a Bangladeshi national. He came to the United Kingdom as a visitor in June 2002, just a few days before his 13th birthday. His mother had already been living in the UK for two years following the breakdown of her marriage to the Claimant’s father. The Claimant had in the meantime been living with grandparents in Bangladesh.

In 2003 the Claimant was granted further leave to remain as a dependent of his mother, who by then had a student visa. His mother’s student visa expired on 31st January 2004. Since that date the Claimant has remained living in the UK without leave. He made an application for indefinite leave to remain in 2009 which was refused in February 2011. A request for reconsideration was refused in July 2011.

On 9th February 2012 the Claimant made an application for leave to remain based on Article 8 ECHR grounds. He relied on a number of matters. He had (by that date) been in the UK for 10 years. He came to the UK lawfully as a child. Although his leave to remain expired with his mother’s visa in 2004, his mother has since obtained leave to remain. He was not included in her successful application as he was by then over 18. He is e