Petition Of Wsm (ap) As Guardian For Miss Ak Against The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2016] CSOH 175 |
| Court | Court of Session |
| Published date | 14 December 2016 |
| Year | 2016 |
| Date | 14 December 2016 |
| Docket Number | P91/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 175
P91/15
OPINION OF LORD KINCLAVEN
In the petition of
WSM (AP) as guardian for MISS AK
Petitioner
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent
Petitioner: Caskie; Drummond Miller LLP
Defender: McIlvride QC; Office of the Advocate General
14 December 2016
Introduction
[1] The petitioner seeks judicial review of a decision by the Secretary of State for the Home Department in terms of which the petitioner and her daughter were refused indefinite leave to remain in the United Kingdom, in circumstances where limited discretionary leave had already been granted. The petitioner seeks reduction of the decision, in respect of her daughter only, as unlawful et separatim unreasonable. The respondent is the Advocate General for Scotland, on behalf of the Secretary of State.
[2] The case came before me for a substantive first hearing.
The Relevant Policy Context
[3] The petitioner characterised the law in relation to the grant to children of indefinite leave to remain as “somewhat controversial”, under reference to R (SM and Anr) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) in which the Secretary of State’s inflexible policy, which has been revised subsequently, was deemed to be unlawful. In these proceedings, however, the petitioner’s only challenge is to the discretionary decision of the Secretary of State in terms of the revised policy. There is no challenge to the lawfulness of the policy itself.
[4] Insofar as material, and founded upon by the petitioner, the Secretary of State’s revised policy in respect of applications for discretionary leave (from 24 June 2013), in cases concerning children, provides (para 1.2) as follows:
“In cases where it is considered appropriate to grant [discretionary leave], decision makers must also consider whether to exercise discretion in relation to the length of leave to be granted. This is because a decision about duration of leave granted outside the rules is an immigration function to which section 55 [of the Borders, Citizenship and Immigration Act 2009] applies. Decision makers must demonstrate they have had regard to the child’s best interests when considering the type and length of leave granted following a decision to grant a period of leave outside the rules…
4.4 (Non-standard grant periods: Longer periods of stay)
There may be cases where a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child, (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period or [indefinite leave to remain]…
In cases involving children, decision makers must regard the best interests of the child as a primary consideration (although not necessarily the only consideration) when deciding the duration of leave to be granted. Whilst the expectation is that in most cases a standard period of 30 months (2.5 years) [discretionary leave] will be appropriate, there may be cases where evidence is provided showing that a longer period of leave (or [indefinite leave to remain]) is required in order to meet the best interests of the individual child under consideration.
Factors such as the length of residence, whether the child was born in the UK and strong evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than [indefinite leave to remain] need to be weighed against immigration history, including conduct of the parents or guardians, and wider requirements to ensure a fair, consistent and coherent immigration policy…
In all cases the onus is on the applicant (or their representative) to provide evidence as to why it is in the best interests of the child to be granted a period of leave that is longer than the standard period of [discretionary leave]. Where a decision maker considers that it is in the best interests of the child or there are exceptional, compelling reasons to depart from the policy of granting 30 months [discretionary leave], the case must be referred to a Senior Caseworker for further consideration.” (emphasis added)
[5] It is generally accepted that the best interests of the child must be a primary consideration (although not necessarily the only consideration) when making decisions affecting children (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4), and that account must be taken of the need to safeguard and promote the welfare of children in the United Kingdom (Borders, Citizenship and Immigration Act 2009, s 55).
[6] Broadly, however, the petitioner contends that the Secretary of State has failed to take account of these considerations in the exercise of her discretion in the present case.
Procedural history
[7] The petitioner is a citizen of Iraq. In March 2003, the petitioner and her two daughters entered the United Kingdom as dependents of the petitioner’s husband. The petitioner’s husband was granted leave to enter as a highly skilled migrant. The petitioner’s daughters were then aged 16 and 2. The younger of the petitioner’s daughters is the subject of the present proceedings. The immigration status of the petitioner and her younger daughter depended upon the petitioner’s husband’s status from time to time until, on 22 February 2010, the petitioner and her daughter applied for leave to remain in the United Kingdom independently, an application by the petitioner’s husband having been refused.
[8] The petitioner’s application contended that it would be disproportionate in terms of Article 8 of the European Convention on Human Rights to expect her and her daughter to return to Iraq “after such a length of residency in this country and clear integration into Scottish society. We would ask that they be granted leave to remain.” No further specification was provided as to the length and type of leave sought. On 21 January 2011, the petitioner’s application was refused. Whilst the Secretary of State acknowledged the family life existing between the petitioner and her daughter, their claim of continuous residence in the United Kingdom since 2003 was rejected. The petitioner and her daughter appeared to have remained outside the country for a period of at least a year and five months between 2004 and 2006. In all the circumstances, it was deemed to be reasonable and proportionate for the petitioner and her daughter to continue their family life outside of the United Kingdom. There were no exceptional circumstances justifying the grant of discretionary leave outside of the immigration rules.
[9] On 9 February 2011, the petitioner made further representations in respect of alleged factual errors in the Secretary of State’s decision, in particular with regard to the disputed period of residence in the United Kingdom. On 28 July 2011, despite acknowledging that some confusion had arisen in respect of the relevant period of residence, the Secretary of State refused to depart from the decision. The petitioner raised judicial review proceedings and, on 23 May 2012, the Secretary of State withdrew the decision.
[10] On 7 September 2012, upon reconsideration of the application, discretionary leave was again refused. The petitioner raised appeal proceedings before the First-tier Tribunal and again, on 20 November 2012, the Secretary of State withdrew the decision.
[11] In the course of the appeal proceedings, statements of the petitioner and the petitioner’s daughter (now forming Nos. 6/5 and 6/6 of Process, taken on 23 and 2 October 2012 respectively) were lodged in support of the appeal. In the present proceedings, it is said that these statements “make clear the basis upon which the Secretary of State should have granted indefinite leave to remain to the petitioner’s daughter”. The statements are produced and incorporated within the petition. Notably, however, a separate note lodged by the petitioner in the appeal proceedings records that the “crucial issue” in the appeal was whether the petitioner and her daughter had remained resident in the United Kingdom between 2004 and 2006, the petitioner contending that the Secretary of State’s refusal of leave to remain had been based on the factually inaccurate assertion that the petitioner and her daughter had spent around a year and a half in Iraq during that period.
[12] Finally, on 9 September 2013, the Secretary of State granted the petitioner and her daughter limited leave to remain for 30 months’ duration, until 3 March 2016. No reasons are set out in the body of the decision letter that has been produced by the respondent before this court.
[13] On 10 March 2014, the petitioner issued a pre-proceedings letter (PN No 2 of 2013), which contended (for the first time) that the petitioner ought to have been granted indefinite leave to remain, rather than a restricted grant of discretionary leave (citing R (SM and Anr) v Secretary of State for the Home Department (supra)). The letter founded in brief terms upon the period of the petitioner’s residence with her daughter in the United Kingdom, and the fact that the petitioner’s daughter has undertaken her schooling in the United Kingdom. It was submitted that the Secretary of State had acted unreasonably in restricting the grant of leave to two and a half years, and that she had failed to give proper consideration to the impact of section 55 of the Borders Citizenship and Immigration Act 2009.
[14] The petitioner’s request for indefinite leave to remain was refused on 19 March 2014. The refusal letter noted that no argument had been put forward as to why it was contrary to the petitioner’s daughter’s best interests to be granted “the normal period of discretionary leave”. There was nothing to suggest that the petitioner and her daughter had been adversely affected by the decision to grant discretionary leave (citing DM ...
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