Azizi, R (on the application of) v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- CHRISTOPHER SYMONS QC
Areas of Law
- Immigration Law
- Human Rights Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The case revolves around the Azizis, who challenged the Secretary of State's decision to grant them discretionary leave instead of indefinite leave due to improper consideration of Section 55 and the delay in handling their case. The court acknowledged the decision's unlawfulness but deemed the error immaterial, as reconsideration would likely yield the same result. Key legal principles include the necessity of considering the child's best interests in immigration cases and ensuring decisions align with Section 55. The Azizis' circumstances required specific attention due to their prolonged stay and integration in the UK.
J U D G M E N T
THE DEPUTY JUDGE: In this matter, Mr and Mrs Azizi and their five children, citizens of Afghanistan, challenge the decision of the Secretary of State for the Home Department made on 24 January 2012 granting the family discretionary leave to remain for a period of three years when it is said that the only proper course open to the Secretary of State was to grant the family indefinite leave to remain.
The claim form dated 24 April 2012 initially sought to quash the Secretary of State's decision and "to reconsider the Claimants' case in accordance with the legacy criteria and grant the Claimants indefinite leave to remain". The basis of the argument was that due to delay on part of the Secretary of State, the Claimants' cases had been considered under the new policy guidelines following the closure of the CRD on 20 July 2011 which had resulted in them being given discretionary leave to remain rather than indefinite leave. Had the cases been considered in a timely matter, it is said that all would have received indefinite leave to remain.
Following the case of Geraldo v Secretary of State [2013] EWHC 2763 (Admin) , amended grounds for judicial review were prepared by Mr Pretzell, who appears for the Claimants before me. These grounds, although dated October 2013, did not apparently find their way to the Secretary of State until October of this year. In Geraldo , the argument based on the fact that had the Secretary of State considered the case in a timely fashion indefinite leave to remain would have been granted was rejected. In the amended grounds, the Claimants no longer sought so to rely. Instead, a new case was raised based on the case of SM & Ors v the Secretary of State [2013] EWHC 1144 (Admin) . In that case, Holman J held that the Secretary of State's policy on discretionary leave was unlawful when considered in the light of S.55 of the Borders, Citizenship and Immigration Act 2009 (which I shall call the 2009 Act ) and also held that the absence of any consideration of S.55 in the decision making made the decision in that case unlawful.
Here Mr Pretzell argues that the Claimants are in the same position as SM & Ors . The decision letter in their case, in the Claimants' case, is silent about S.55 and there is no indication that the Secretary of State had regard to it. Thus he argues the decision made on 24 January 2012 is, therefore, unlawful and should be quashed. I am very much paraphrasing the argument, but that is, in essen