Arifuzzaman Rana v First-Tier Tribunal (Immigration & Asylum Chamber)
[2024] EWCA Civ 1211
Guren Zhou & Ors, R (on the application of) v Secretary of State for the Home Department
7 February 2024
[2024] EWCA Civ 81
Court of Appeal
A family's application to stay in the UK was delayed because of a police investigation against the father. The court said the government had the right to wait for the investigation to finish before deciding, even though it took a long time. Because the family made a new application, the case ended.
Key Facts
- •Appeal against Upper Tribunal (UT) Judge Frances' refusal of permission to apply for judicial review.
- •Appellants (Chinese nationals: husband, wife, daughter) sought leave to remain in the UK.
- •Home Office deferred decisions on their applications due to an ongoing police investigation into money laundering involving the father.
- •The initial reason for deferral (outstanding criminal prosecution) was inaccurate; the investigation was ongoing.
- •Appellants argued unlawful/unreasonable delay, impacting their Article 8 rights and creating a 'hostile environment'.
- •Appellants subsequently submitted a new application for leave to remain under Article 8 ECHR.
Legal Principles
The Home Secretary has an implied power to defer decisions on leave to remain applications.
R (X and others) v SSHD [2021] EWCA Civ 1480
To be lawful, deferral must consider individual facts and avoid unreasonable delay.
R (X and others) v SSHD [2021] EWCA Civ 1480; Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673
Article 8 ECHR considerations; self-induced hardship may not engage Article 8.
Gillberg v Sweden, Denisov v Ukraine, Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673
Section 55 of the Borders, Citizenship and Immigration Act 2009; best interests of the child.
R (TS) v SSHD [2010] EWHC 2614 (Admin)
Implied powers of the Home Secretary are subject to judicial review on public law grounds.
R (New London College Ltd) v SSHD [2013] 1 WLR 2358; R (X) v SSHD [2021] EWCA Civ 1480
Rule 34BB of the Immigration Rules; subsequent applications vary previous applications.
Immigration Rules, Home Office Guidance on “Validation, Variation, Voiding and Withdrawal of Applications”
Outcomes
Appeal dismissed.
The UT Judge's decision was lawful; the Home Office's deferral was a reasonable exercise of its implied power, given the ongoing serious criminal investigation.
Appeal rendered academic by subsequent application.
The new application under Article 8 materially varied the previous application, making the challenge to the deferral of the earlier application irrelevant.
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