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Immigration Solicitors

Duncan Lewis challenge legality of SSHD’s ongoing failure to grant Claimant leave to remain in the UK under Article 8 ECHR (25 July 2014)

Date: 25/07/2014
Duncan Lewis, Immigration Solicitors, Duncan Lewis challenge legality of SSHD’s ongoing failure to grant Claimant leave to remain in the UK under Article 8 ECHR

The case of Syed Shah sought to challenge the legality of the Secretary of State's historical and ongoing failure to grant the Claimant leave to remain in the United Kingdom, and additionally sought to claim damages for the Home Office's unlawful delay in reaching a decision upon his leave to remain application.

The Queen on the application of Syed Shah - and - Secretary of State for the Home Department [2014] EWHC 2192

In the High Court of Justice- Queen's Bench Division- Administrative Court- 04/07/2014


Full access to the published judgement is available by clicking here.

The Home Office originally refused the Claimant's application for leave to remain in the year 2011, and the Claimant subsequently made an application for this refusal decision to be reconsidered.

Although the Home Office agreed to reconsider the Claimant's leave to remain application, a decision to grant the Claimant leave to remain was not made until some three years later, on 27 May 2014, and to date, the Home Office has still not issued the Claimant with his Biometric Residence Permit (BRP) confirming his grant of leave in this country, so the Claimant still remains without documentary proof of his immigration status.

In the intervening period, the Claimant's relationship with his British wife broke down due to her mental health issues, and the Claimant's British son was taken into care as a direct result of social services' concerns regarding the potential risks to the Claimant's child as a direct result of the Claimant's wife's mental health problems.

In order to have a chance of getting a residence order in his favour, the Claimant began living separately from his wife, but the family court was unable to grant him a residence favour due to the fact that the Claimant was unable to show he was able to meet the essential needs of his son, as a direct result of his lack of immigration status. The Family Court had no option but to refuse the Claimant's application, and a Special Guardianship Order was made in respect of the child's maternal grandparents.

Accordingly, it was asserted that the Claimant's lost opportunity to present himself as a suitable carer for his child was in breach of his Article 8 right to a private and family life in his country, and the Home Office's complete refusal to speed up the processing of his application for leave to remain, in spite of numerous requests for expedition, was unlawful.

Although the Administrative Court's judgment failed to accept that the Home Office's failure to expedite the processing of the Claimant's leave to remain application was a breach of the Claimant's Article 8 rights, and also failed to accept the Claimant had any entitlement to damages, there were a number of significant issues which the judgment failed to address.

Firstly, although the Judge claimed the delay was not unlawful, the Judge expressly found in her Judgment that the Home Office had breached section 55 of the Borders, Citizenship and Immigration Act 2009 in the processing of the application, in that the Home Office failed to make arrangements to ensure that the child's best interests were safeguarded. It is therefore clearly arguable that the Home Office's delay was unlawful

Secondly, a person clearly has a right to a private and family life under Article 8 before this right is expressly recognised by the Secretary of State in granting leave to remain. Therefore, the Court is arguably wrong to assert there was no violation of Article 8 rights in this case as a direct result of the Home Office's delay in granting leave to remain.

Thirdly, the Secretary of State is under an Article 8 duty to do everything practicable to expedite cases involving children, and the Judge's finding that the Home Office are not required to do this is arguably wrong.

Fourthly, the Claimant has a legitimate expectation of being granted relief in the form of damages for the violation of his Article 8 rights, as he has been denied the opportunity to present himself as a primary carer for his child as a direct result of the Home Office's failure to do anything to expedite the processing of his application. Therefore, there is an arguable right to compensation for this lost chance, which has interfered with the father/son relationship in a particularly adverse and far-reaching manner.

Fifthly, the Judge failed to recognise that although the Home Office finally made a decision on 27 May 2014 to grant the Claimant leave to remain in this country, the Claimant is continuing to suffer an ongoing violation of his Article 8 rights as a direct result of the Home Office's failure to issue him with his BRP confirming the grant of this leave.

Notwithstanding the Administrative Court's recent refusal decision, as this claim continues to gives rise to arguable grounds raising serious and compelling issues of wider significance and public importance, an application has been submitted to take this case to the Court of Appeal, which is currently awaiting consideration.

The Claimant was represented by Duncan Lewis Solicitors Director of Public Law Trevor Hatton.


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