Turkish national seeking leave to remain in the UK has petition for judicial review dismissed
A Turkish national who was refused leave to remain in the UK despite claiming that he had established a family and private life has had a petition for judicial review of the decision dismissed by a judge in the Court of Session.
Petitioner Halit Genc, 24, challenged the decision taken by the Upper Tribunal (Immigration and Asylum Chamber) in August 2014 refusing him leave to appeal against the decision of the First‑tier Tribunal, on the ground that it failed to take into account his rights under article 8 of the European Convention on Human Rights (ECHR).
However, Lord Woolman (pictured) refused the petition after ruling that any appeal would not have strong prospects of success, and that the petitioner could in any event make an application for leave to remain in the UK from Turkey.
The court heard that both the petitioner and his wife were Turkish nationals who initially lived in Turkey after their marriage, but she then moved to the UK and had settled status here.
The couple had three children, all British citizens, with whom their father maintained family life prior to July 2012 by occasionally visiting the UK and using modern forms of communication.
The petitioner came to the UK on 1 July 2012 with permission to remain as a visitor until 20 December 2012, during which time he applied for further leave to remain on the basis that he had established a family and private life in the UK.
However, the Home Secretary refused his application and petitioner’s appeal to the First‑tier Tribunal was refused after the immigration judge held that it was “proportionate to the competing public interest issues” to require the petitioner to return to Turkey and make his application from his homeland.
The petitioner lodged ten grounds of appeal against the decision of the First‑tier Tribunal, but the Upper Tribunal refused permission to appeal, and he then challenged the decision of the Upper Tribunal on four separate grounds.
The petitioner argued that the provisions of appendix FM of the Immigration Rules were “illogical, unreasonable, irrational, encourage law-breaking, were not in the best interests of children and prevented article 8 rights being vindicated”.
It was also submitted that the petitioner’s prospects of obtaining leave to enter the UK from Turkey were “relevant”, and that this position should not have been equated with that of an illegal entrant.
It was further argued that the Upper Tribunal should have taken into account the article 8 ECHR public interest considerations set out in section 117B(6) of the Immigration Act 2014, which states that in the case of a person who is not liable to deportation, the public interest does not require the person’s removal where the person has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the UK.
The petitioner submitted that all four grounds involved an “important point of principle or practice” in terms of the first limb of the test set out in the 2012 Supreme Court case of Eba v Advocate General for Scotland.
However, the judge concluded that the petition for judicial review should be dismissed.
Delivering his opinion, Lord Woolman said: “First, none of the grounds of challenge raises an issue of general importance. They all relate to particular matters confined to the position of the petitioner.
“Second, the petitioner has failed to identify an error in law on the part of the Upper Tribunal, which is the decision under challenge. In substance, the petitioner directs his challenge at the approach taken by the First‑tier Tribunal.
“Third, I do not consider that the petitioner has prospects of success if I allow further procedure to take place. The Inner House stipulated that the prospects of success are a relevant factor for both branches of the Eba test.
“In the present petition, there is another cogent reason for considering the prospects of success. The petitioner did not advance the present grounds of challenge to the Upper Tribunal. In such circumstances, he is only entitled to leave if he establishes that the new grounds have strong prospects of success. I am not so satisfied…
“I hold that this is not one of those rare and exceptional cases where a reading of the petition alone cries out for the matter to be reconsidered. The petitioner will not suffer compelling injustice as a result of the First‑tier Tribunal decision. He is entitled to make his application from Turkey.”
© Scottish Legal News Ltd 2021