The High Court has dismissed judicial review applications by Krishan Kant and a second applicant identified as S.I. (Bangladesh), ruling that neither could apply under section 4 of the Immigration Act 2004 on the basis of permissions granted under EU Treaty Rights rules.
Mr Justice Richard Humphreys delivered the judgment on 22 July 2019. He held that an EU family member stamp 4 permission granted under the Free Movement of Persons Regulations is not a section 4 permission. The court said section 4 applies to people seeking admission at the State’s frontier or renewing or varying an existing section 4 permission, including applications made sufficiently soon after expiry. The judge said that short-period exception did not apply after gaps measured in more than months.
Both applicants had previously held student permissions under section 4, but later held permissions under EU free movement rules after marrying EU nationals. The Minister refused to consider their later section 4 applications. They argued that the Minister had acted unlawfully by treating himself as unable to consider those applications or to exercise residual discretion separately.
The court rejected that central argument. It also held that the Minister was not required to consider residual executive discretion outside the process for making submissions under section 3 of the Immigration Act 1999. Other grounds, including alleged failures to give reasons and to consider relevant matters, did not succeed.
The judgment recounted separate immigration histories in the two cases. In Kant, the Minister had revoked the residence card and found the marriage to be one of convenience, with the permission void from the outset; a review upheld that finding, and a proposal to deport was issued. The judge described those as the current position while noting that the applicant might still challenge that decision.
In S.I., the judgment said the applicant’s residence card had been revoked and that finding was not challenged in these proceedings. It also noted the applicant had not informed the Minister of changed circumstances, even on his own account, and had earlier said he had never been married when entering the marriage with the EU national.
The judge said the applicants’ conduct and lack of candour would also have justified refusing discretionary relief. The court dismissed both applications. It did not determine any challenge to the later findings about Kant’s marriage or the revocation of S.I.’s residence card.