Mohammad, R (on the application of) v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- TIM OWEN QC
Areas of Law
- Immigration Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
This case involves Zia Mohammad seeking judicial review of the Secretary of State's refusal to grant him refugee status as a dependant of Ms. Rukhsana Kausar, who was granted such status. Instead, he received humanitarian protection. The court held that under Immigration Rules paragraph 349, Mr. Mohammad was not entitled to refugee status as a dependant of Ms. Kausar because his and Ms. Kausar's claims were processed separately from the start, and humanitarian protection with leave to remain was a sufficient lawful remedy.
J U D G M E N T
THE DEPUTY JUDGE:
This is an application for judicial review by Zia Mohammad, a citizen of Pakistan, who seeks to challenge the decision of the Secretary of State for the Home Department set out in two letters dated 18 and 23 May 2012, whereby his application for refugee status as the dependant partner of MsRukhsanaKausar was refused. The case turns on the proper construction of paragraph 349 of the Immigration Rules (HC 395) and in particular whether the circumstances in which the claimant pursued his application for asylum compelled the Secretary of State to grant him refugee status in accordance with that granted to MsKausar, or whether the decision to grant him humanitarian protection in accordance with paragraph 339C of the Rules and to issue him with a residence permit valid, like his partner's, until 14 December 2016, represents a lawful discharge of the Secretary of State's decision making duty.
The full history of this case is somewhat complex including, as it does, two sets of appeal proceedings before an immigration judge and a previous judicial review application in 2009/2010 which was ultimately withdrawn by consent. But the essential facts can be stated relatively briefly and are as follows.
The claimant and MsKausar arrived together in the UK in March 2005 and claimed asylum and/or humanitarian protection which was refused by the Secretary of State in separate decisions issued on 15 June 2005 and 7 July 2005 respectively. The basis for the asylum/human rights claims was a fear that they would face ill treatment and possible death if they returned to Pakistan because of the nature of their relationship, and the fact that MsKausar was married to a man in Pakistan who had already made one attempt to murder her by setting her on fire on discovering the fact of her pre ‑ existing and continuing intimate relationship with the claimant. It is clear that not only had the claimant and Ms Kausar lodged separate applications in 2005, but that Immigration Judge Hanratty reached separate decisions in each of their cases when he dismissed both appeals in a single determination dated 31 October 2005 (see his determination at pages 155 ‑ 169 of the trial bundle).
At no stage in 2005 was it suggested that the claimant's claim for asylum or his human rights claim was pursued as a dependant of his wife in the sense that it had no independent existence or viability on its own merits. Appeal rights for both the claimant and MsKausar became e