Mr Khan was represented in the Court of Appeal by Stephanie Harrison QC leading David Sellwood, of the Garden Court Chambers Immigration Team and by Zia Nasim of Milestone Chambers in the earlier High Court and Court of Appeal proceedings, all instructed by Mohammed Amjad at Legal Rights Partnership.
Mr Khan’s challenge against his removal from the UK has finally been allowed by agreement with the Secretary of State for the Home Department, almost five years after the Court of Appeal originally granted him permission to appeal against the High Court’s dismissal of his initial claim. The matter has been remitted to the High Court for the consequential issues relating to the legality of his detention and imposition of employment restrictions to be dealt with.
Mr Khan, a Pakistani national, entered the UK on a work permit and with entry clearance on 25 October 2008. He began working in compliance with his work permit and sought additional employment. He was joined shortly thereafter by his wife, who secured entry clearance from Pakistan as his dependent.
In May 2012, the Home Office sought to remove Mr Khan to Pakistan under s 10(1)(a) of the Immigration and Asylum Act 1999 (as it then was), on the erroneous basis that he had failed to observe a condition attached to his leave by seeking additional work, under paragraphs 128 and 129 of the then Immigration Rules.
He was detained under immigration powers and only released after filing a claim for judicial review and securing interim relief by the High Court. His judicial review was subsequently dismissed by Green J (reported as R (Khan) v SSHD [2014] EWHC 2494 (Admin)) on the basis he had an alternative remedy, i.e. an out of country right of appeal to the First tier Tribunal (IAC). Permission to appeal to the Court of Appeal against that judgment was granted, not least because of questions surrounding the effectiveness of out of country appeals.
Thereafter the appeal was vacated on a number of occasions, during which the Supreme Court and Court of Appeal provided guidance as to when an out of country right of appeal can be human rights compliant (see, for example, Kiaire & Byndloss v SSHD [2017] 1 WLR 2380; and Ahsan v SSHD [2017] EWCA Civ 2134).
The Court of Appeal also provided guidance on when the Immigration Rules impose a condition on leave to remain or enter, and when written notice of a specific condition must be given to the person affected (see R (Anwar) v SSHD [2017] EWCA Civ 2134). That guidance was directly applicable to Mr Khan’s circumstances, where there had been no notice restricting additional work.
