Sikhosana, R (on the application of) v The Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- MICHAEL KENT QC
Areas of Law
- Immigration Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The case involves a South African citizen, the Claimant, who overstayed in the UK and applied for leave to remain based on his relationship with a British citizen. His application, initially assessed under new Immigration Rules, was refused. The Claimant argued that he should have been assessed under the old rules and that the refusal disproportionately interfered with his Article 8 ECHR rights. Michael Kent QC upheld the application of the new rules and found no disproportionate interference in the refusal, noting the two-stage process for considering Article 8 claims.
Judgment
Michael Kent QC:
This is a claim for judicial review brought with the permission of Miss Geraldine Clark sitting as a Deputy Judge of the High Court. His Honour Judge Jarman QC sitting as a Judge of this Court had directed that there be a “rolled up hearing” but because, in reliance on recent Court of Appeal authority, the Claimant’s Counsel was permitted substantially to change the nature of the grounds being pursued, Miss Clark adjourned the substantive hearing which has now come before me.
The Claimant, a citizen of South Africa, is now aged 37 and came to the United Kingdom on a six-month visitor’s visa in 2002. He obtained further leave to remain as a student until 30 September 2003 but he has remained unlawfully here since then. On 5 March 2012 he applied for leave to remain as a family member on the basis that he had met a British citizen, Sharon Verona Campbell, in 2007 and they had been living together since November 2008. She was earning a living as a self-employed cleaner and they, along with her two children from a previous relationship, occupied a three bedroom flat rented from the Council by Ms Campbell. They intended to marry. The Claimant was said to rely upon financial support both from Ms Campbell and from his family in South Africa.
By letter dated 13 October 2012 the Claimant was notified that his application had been refused. The letter was accompanied by a Notice of Decision which contained reasons. The covering letter stated that changes to the Immigration Rules announced on 11 June 2012 (that is after the date of the Claimant’s application for leave to remain) now set out “requirements for those seeking leave to enter or remain on the basis of their right to respect for private or family life by defining the criteria that a person is expected to fulfil in order to qualify (sic) this right to remain in the United Kingdom. These are set out in Appendix FM and paragraph 276ADE of the Immigration Rules”.
The Notice of Decision referred to paragraph 295F, with reference to 295D (i) and (iv) of the Immigration Rules, and to paragraph D-LTRP1.3, with reference to R-LTRP1.1(c) and (d) of Appendix FM. It also referred to paragraph 276CE. The first part of the Notice identified two requirements of paragraph 295D which the applicant was unable to meet, namely the need to have limited leave to enter or remain in the United Kingdom and not to have remained in breach of the immigration laws. There is no issue about that. The Notice