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Minister’s decision not to consider applications for permission to reside was not unlawful

By: James Cross BL

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High Court refuses judicial review of two decisions of the Minister for Justice not to consider the applications for permission to reside of two applicants who had historic student permissions and then married EU citizens and were granted permissions to reside on foot of their EU spouses, but then applied for permissions to reside in their own right, on the grounds that they were not persons in possession of extant permissions pursuant to immigration law.

Asylum and immigration – judicial review – two cases - received historic student permissions – married EU citizens – permissions to reside based on their EU spouses – Free movement of persons - applied for permissions to reside here in their own right - Minister refused to accept applications because they were not persons in possession of extant permissions pursuant to the immigration act - facts and procedural history - whether the Minister was precluded from considering the applications under s. 4 of the 2004 Act - contend that the Minister erred in law and unlawfully fettered his discretion in regarding himself precluded from considering the application - an application for EU Treaty Rights is not made under s. 4 of the 2004 - either applicant is a person who was at the time of their s. 4 applications in possession of an extant permission under s. 4 of the 2004 Act – alleged lack of reasons - no obligation on the Minister to exercise any residual executive discretion outside of the process established by s. 3 of the Immigration Act 1999 - wide and extensive nature of that discretion only general reasons could be given – reasons perfectly adequate in the circumstances – whether the Minister acted ultra vires - fundamental misconception because any rights under the ECHR, as applied by the European Convention on Human Rights Act 2003, can and will be addressed in the context of any deportation proposal – discretion - misleading information – marriage of convenience - where an applicant who had a permission under s. 4 of the 2004 Act but then moves on to a different permission not under s. 4, or alternatively lets that permission expire without applying to renew its currency or very shortly thereafter, and thus is not the holder of an extant permission under s. 4 of the 2004 Act, such an applicant is precluded from making a renewal application under s. 4 of the 2004 Act or a free-standing application under that section - Minister is not obliged to consider any application made under his residual or executive discretion in a free-standing manner, whether he is requested to do so or not, and may deal with any discretionary application in the context of submissions made under s. 3 of the Immigration Act 1999 – judicial review refused.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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