Leave to remain under immigration rules 246 and 247 (save for lack of entry clearance) exercising rights of access to a child resident in the UK

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Leave to remain under immigration rules 246 and 247 (save for lack of entry clearance) exercising rights of access to a child resident in the UK

Wray, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3301 (Admin) (16 December 2010)

This case concerned the a judicial review against the defendant Secretary of State for the Home Department's (herein after referred to as the SSHD) refusal to accept to treat the claimants application as a fresh claim in accordance with paragraph 353 of the Immigration Rules HC395. The claimant argued that any intended removal would breach his Article 8 human rights.

Brief summary of claimant's immigration history:
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The claimant is a Jamaican national who arrived in the UK on 24th April 2002. He used a false passport to enter the UK. The claimant claimed that he was being targeted and persecuted by the Jamaican police. The claimant contacted a solicitor and made an appointment to claim asylum. However, before he could do so, the Jamaican police officer from whom he fled, arrived in the UK and contacted UK police who then arrested the claimant. The claimant claimed asylum at the police station. He was not charged with any offence but was made subject to immigration detention. On 25th June 2002, his asylum and human rights claim was rejected and he appealed against the decision. His appeal was subsequently dismissed and the immigration judge commented that, whilst he accepted the claimant had been harassed by the police however, he would not face persecution in the sense of article 2 or 3 of the human rights Convention. The judge found that article 5 of the Convention could not be engaged either.

The claimant's application for leave to appeal to the Tribunal was refused and he subsequently lodged a judicial review in February 2003. Permission was refused on an oral application. Permission to appeal to the Court of Appeal was subsequently lodged and refused. In August 2003, the claimant was detained and removal directions were set. A second judicial review was lodged against removal directions and provided fresh evidence in support of his case. Permission was refused and the claimant subsequently lodged a fresh claim. The clamant had also been in a relationship and his first child was born. His child was a British Citizen. The claimant was detained again before a decision had been made in respect of his fresh claim. Another judicial review was lodged and it was held that his fresh claim had not been dealt with. In the interim, the claimant had a second child from his new partner Ms Shakira Gray. The relationship was still subsisting however; Ms Gray did not have any leave to remain in the UK. The claimant than made an Article 8 based claim in 2007. He based his claim on his relationship with his children (he had another child thereafter with Ms Gray).

Ultimately, the claimant's fresh claim was refused and not accepted as a fresh claim. Further representations were submitted however, the defendants maintained their decision.

The verdict:

The court considered the relevant legal framework in this case, namely paragraph 353 of the immigration rules. They also considered all the relevant case law including WM (DRC), Razgar, Huang, Beoku Betts and Chikwamba. The claimant's argued that he qualified for leave to remain (save for lack of entry clearance) under immigration rules 246 and 247 exercising rights of access to a child resident in the United Kingdom. However, the court dismissed the application finding in favour of the defendant stating that the SSHD had applied anxious scrutiny to the case and had properly considered all the material including new evidence supplied by the claimant. The claimant had merely submitted evidence which he had already relied upon but which he had expanded. The SSHD had considered his relationships and had come to an unfavorable conclusion. The strength of the claimant's relationship and article 8 family life had been given anxious scrutiny and in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 (which deals with safeguarding and promoting the welfare of children). Section 55 places a duty on the UK Border Agency to carry out functions having regard to the welfare of children which the defendant claimed they had done and which the court accepted.

The case was dismissed.

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