Sarah Pinder secures two grants of permission to apply for Judicial Review
Sarah Pinder has recently been granted permission to apply for Judicial Review is two distinct cases.
The first by the Administrative Court in Cardiff following a with notice permission hearing, defended by the SSHD. The case concerns the SSHD's decision to impose a ‘no recourse to public funds’ condition on the claimant’s and her son’s leave to remain, which was granted to them under the parent/EX1 route of Appendix FM of the Immigration Rules. Mr Recorder Grubb QC agreed that the decision was arguably unlawful since the SSHD had failed to take into consideration the child’s best interests and discharge her duties under s.55 of the Borders, Citizenship and Immigration Act 2009. The second ground on which permission was granted relates to the actual policy of ‘recourse to public funds’, contained in Paragraphs 8.0 of the ‘Immigration Directorate Instructions - Family members under the Immigration Rules - Section FM 1.0 - Partner and ECHR Article 8 Guidance’, arguably being incompatible with s.55 itself as it imports a test of ‘exceptional circumstances’ and does not allow for case-specific consideration. The case of SM & others [2013] EWHC 1144 (Admin) was relied upon in this respect. Sarah's instructing solicitor is Vinita Templeton of Duncan Lewis.
The second case in which Sarah was recently granted permission was on the papers by the Upper Tribunal. In this case, the SSHD has arguably failed to apply its own policy and/or her decision is irrational and permission was granted on both these grounds. The SSHD had refused the claimant’s application for ILR made on the basis that she had resided in the UK for a continuous period of 5 years in line with the EEA Regulations 2006. However, she was a victim of domestic violence - which the SSHD had accepted - and could not submit, as a consequence, her husband’s documents in support of her application. S.40 UK Borders Act 2007 (covering for example the opportunity for the SSHD to request HMRC for the husband’s proof of work) and the UKBA policy in these circumstances was relied upon in the application. This is a little known policy which was sourced through a Freedom of Information request by Colin Yeo of the Free Movement blog. Sarah's instructing solicitor is Vanessa Delgado of Duncan Lewis.