Case of Granovski v Secretary of State for the Home Department (2015) EWHC 1478 (Admin)
SUMMARY – This is an important case ! The court found that there is no category of immigration decision making to which consideration of Human Rights and the best interests of children do not apply. An applicant does NOT have to make a fee paying application for these matters to be considered, which is what the Home Office had, unsuccessfully, argued.
THE FACTS OF THE CASE – This was a case of a Ukranian national who had entered the UK with a visa under the old Highly Skilled Migrant Programme (HSMP) in 2005. His wife and 3 children were also party to the appeal. He was given further leave to remain in 2010 and in 2013 he applied for permanent stay (known as Indefinite Leave to Remain), which was refused. They then, in a seperate letter, granted an extension application until 2016.
He challenged the decision by way of Judicial Review. The Home Office in refusing the application relied on rules that were not in force when the claimant made his original application, requiring ‘continuous lawful residence’ and allowing for a specific number of days absence from the UK, which he had exceeded. The Home Office also said in their refusal that no consideration had been given to his rights under Article 8 (found in Paragrpah EX.1 of Appendix FM relating to family members) as he had not made a specified application paying the appropriate fee.
The claimant argued his case should have been decided on the rules in force on the date he first applied under HSMP and that those rules did not require ‘continuous lawful residence’, rather four years leave to remain, including time spent under HSMP. He also argued that guidance in force when he first applied indicated absence from the UK for business or employment reasons would be disregarded and the Home office had not applied their own policy.
He also argued that if there was a requirement of conintuing residence, a rational, lawful interpretation must be more than simple presence in the UK.
Lastly he argued that the Home Office has a residual discretion which has to be exercised fairly, particulary in relation to Article 8 and s.55 of the Borders, Citizenship and Immigration Act 2009 in respect of children and their best interests. The Home Office had not considered these matters stating that a fee paying application had to be made for these matters to be taken into account.
The court concluded that the claimant was right that his application for Indefinite Leave to Remain fell to be considered under the rules in place at the date he made his original application. He had correctly relied on earlier legal arguments in another case knows as the HSMP forum cases, that provided that ‘in respect of all persons admitted to the HSMP as at 07/11/06, those individuals are entitled to the benefits of the scheme (including settlement) according to the terms (including as to qualifying period) which applied on the date they joined.’
The court also found that, as per the summary, that there is no category of immigration decision making to which Article 8 private and family life, and the best interests of the children, as per s.55 of the 2009 Act did not apply.
HOW DOES THIS AFFECT YOU ? This case means that the Home Office can never absolve themselves from responsilbity to consider Article 8 private and family life and the best interests of children from any kind of Immigration application, and you do NOT need to make a fee paying application for this to take place.
`