Leave to Remain Success for Appellant from Pakistan

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
29 August 2018

I have been acting for a Pakistani national who has resided in the UK since September 2009, having entered the UK as a student. On 12th June 2017 we assisted him in making an application for leave to remain on the basis of his relationship with a British national, who was substantially older than him.  They entered into an Islamic marriage and he has lived in her house since 2015, having moved there as a carer for her husband, who has since passed away.  Prior to instructing us he had made approximately four applications for leave to remain, each of which have been unsuccessful. Our application in June 2017 was supported by a report from Clinical Psychologist Dr Rachel Thomas and Dr Thomas interviewed both the parties to the marriage together and separately and the report found that if the applicant was to be returned to Pakistan, and his elderly wife would not be able to accompany him due to her age and various health conditions she would be at significant risk for development of significant psychiatric illness.

The Secretary of State on the other hand decided that there are no exceptional circumstances in this case and refused the application.  The Secretary of State concluded that the British elderly wife could be cared for by friends in the UK and that the relationship commenced when both parties were aware that our client did not have valid leave to remain in the UK. No reference at all was made to the report of Dr Thomas and the claim was certified under section 94 of the Nationality Immigration & Asylum Act 2002  in effect preventing our client from having an in country right of appeal. He was notified that he could be removed from the UK without any further notice and we submitted Judicial Review.

Our argument in the Judicial Review was that the certification was unfounded.  The Court of Appeal already gave guidance in other cases as to when and on what basis claims can be lawfully certified as clearly unfounded and concluded that each case had to be considered on its own facts and merits.  We argued that the Secretary of State failed to assess all the relevant and material evidence and particularly the report from Dr Thomas, which was very material to our client’s case, that there are exceptional circumstances justifying a grant of leave to remain on Article 8, the right to private and family life grounds.  We have been successful in arguing that the certification should be lifted and the Secretary of State had made a decision and granted our client two and a half years leave to remain as the partner of his British partner. Our success is also particularly sweet given the Secretary of State agreed to pay our client’s reasonable costs in having to take Judicial Review proceedings.