Ganesabalan, R (on the application of) v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- MICHAEL FORDHAM QC
Areas of Law
- Immigration Law
- Human Rights Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The claimant sought judicial review of the decision denying him leave to remain in the UK, arguing that the Secretary of State failed to consider exceptional circumstances under Article 8 ECHR. The court agreed, establishing legal principles requiring a secondary stage for discretion outside the Immigration Rules and applying a proportionality test. Judicial review was granted, quashing the decision from February 2013.
J U D G M E N T
THE DEPUTY JUDGE:
INTRODUCTION
This is a claim for judicial review brought with the permission of Hickinbottom J. At issue is the lawfulness of a revised decision dated 15 February 2013 accompanied by a notice of decision by which the claimant was refused leave to remain in the United Kingdom. This is another case involving what has been described in the authorities as the “two-part test” or “two-stage test” so far as private life and family life under Article 8 of the European Convention on Human Rights and the relevant Immigration Rules and guidance are concerned. Six authorities relating to that topic were cited to me. In date order they were R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ; MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 [2014] 1 WLR 544 ; Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin) ; Halleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558 , R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) ; and R (MM(Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985 .
By a letter dated 29 June 2012, the claimant's solicitors had asked the Secretary of State to " exceptionally consider this application and grant our client an extension of stay in the UK as the partner of a person present and settled in the UK". That letter of representations, read with the accompanying form and materials, emphasised private life and family life and the standard of proportionality under ECHR Article 8. In particular, the following features of the claimant's position were put forward.
The claimant, a citizen of Sri Lanka, had come to the United Kingdom nearly 12 years previously in October 2000 aged 24. He had then been present lawfully with leave to remain as a student for some nine and a half years until April 2010. He had subsequently and unsuccessfully sought to regularise his position, and had then remained in the United Kingdom without leave and invoked Article 8.
The claimant had met his wife in the United Kingdom in 2002, after which they had built up a strong relationship eventually resulting in their marriage in March 2012.
The claimant's wife, now aged 30, was a British citizen who had lived in the United Kingdom for more than 16 years from the age of 14, was settled with a stable job and able to maintain the couple. The clear implication of the letter of r