Immigration consultant Fahad Ansari was involved in a successful judicial review of a decision in which the Secretary of State of the Home Department (SSHD) revoked his client, A’s, right to work.
A was on 3C leave (based on the Immigration Act 1971 section 3C) for many years due to a failure of the Home Office to make a fresh decision on his case. This was following a tribunal finding that the original decision had not been in accordance with the law. In June 2019, the Home Office suddenly revoked his permission to work.
This left A without an income to support his heavily pregnant wife and two young children. A could not pay his rent or bills and his wife missed crucial hospital appointments because she could not even afford a bus fare.
Background
The client, A is an Indian national. His wife is a Pakistani national and they both met in the UK. A first entered the UK on 19 September 2009 with a valid student visa which remained valid until 2011. He later extended this before switching to the post-study work visa valid until May 2014.
A and his wife had a son who was born on 2 June 2013. A’s wife suffers from polycystic ovary syndrome which made her pregnancy more ‘high-risk’ than usual.
On 10 February 2014, while their previous leave to remain was still extant, A’s wife made an asylum application and A applied as a dependant on her claim, alongside their son. The effect of this application, made while A had leave to remain in the UK, was that his existing leave (and the permission to work attached to it) continued under section 3C of the Immigration Act 1971.
As such, on the same day, A was issued with an application registration card (ARC) identifying A as an asylum claimant, stating that A is ’allowed to work’ and providing employers with a number to call to check whether A remains entitled to work. A retained that ARC until it was taken from him on 24 July 2019.
On 23 February 2015, the Home Office made a decision to refuse A’s wife’s asylum claim. It also made separate decisions to refuse A’s and his son’s applications. These decisions were separately communicated. All three decisions were appealed to the First-tier Tribunal which found that they had not been made in accordance with the law and remitted them to the Home Office to make fresh decisions. In 2017, the Home Office made a fresh decision on A’s wife’s claim but critically failed to make a fresh decision in respect of A. As a result, A’s 3C leave and his associated right to work remained in place.
A’s wife made a further application on asylum and human rights grounds in March 2019 , upon which A was a dependant. While a decision on this application was pending, A remained entitled to work as a result of his 3C leave. In June 2019, the Home Office suddenly revoked his permission to work.
Legal Proceedings
The judicial review was sought on two grounds. Firstly, that A had, at all material times and continues to have, leave to remain in the UK pursuant to s.3C of the Immigration Act 1971 and the Home Office’s attempt to prohibit him from working is unlawful.
A had made an application for further leave to remain as long ago as February 2014, within the currency of his previous leave to remain, as a dependant on his wife’s asylum claim. Additionally, A’s wife’s further application on asylum and human rights grounds in March 2019, upon A was a dependant, was never the subject of a decision and remained undetermined.
Secondly, the Home Office was aware of A’s family situation: his wife is a Pakistani national; they have two children who were born in the UK; and his wife was expecting a third child on 7 October 2019 with the pregnancy being specifically identified as ‘high risk’.
Given the circumstances, counsel submitted that the decision to remove the applicant’s entitlement to work and support his family, in the late stage of his wife’s pregnancy as well as the overdue decision on the family’s human rights claim, was an arbitrary and unlawful interference in his and his family’s Article 8 rights.
There had been no explanation for the delay of over three months, affecting a family with two young children and a heavily pregnant woman, from the point when it was said that the Home Office was in a position to make a decision. The Home Office’s conduct, in deciding suddenly to (purport to) withdraw A's right to work at this stage, with pending applications for the whole family, was in full knowledge of the extreme economic hardship it would cause a young family and was therefore disproportionate. It was argued that for the purposes of A’s urgent application for interim relief, the arguability threshold had very clearly been passed.
Outcome
The judicial review was successful in negotiating an order which reinstated A’s right to work. The order provided for urgent interim relief, quashing the SSHD’s orders and included a declaration that A is entitled to work. A was also compensated for loss of earnings (amounting to over £5000) for the three month period from when his permission was revoked.
Representation
A was represented by Fahad Ansari, immigration consultant at Duncan Lewis Solicitors. Counsel was David Chirico of 1 Pump Court.
Contact Fahad Ansari on 07806 807 616 or at fahada@duncanlewis.com