(AB) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] EWHC 1524 (Admin) |
| Docket Number | Case No: CO/1001/2022 |
| Court | Queen's Bench Division (Administrative Court) |
Queen on the Application of
[2022] EWHC 1524 (Admin)
THE HON. Mr Justice Lane
Case No: CO/1001/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A Goodman (instructed by Deighton Pierce Glynn) for the Claimant
Mr J Holborn (instructed by Government Legal Department) for the Defendant
Hearing date: 18 May 2022
Approved Judgment
A. THE ORIGINAL CHALLENGE
This judicial review originally concerned a challenge to the defendant's decision of 9 February 2022 (as confirmed on 24 February 2020, following administrative review) not to lift the condition on AB's grant of limited leave to remain, preventing AB from accessing public funds (the “NRPF condition”).
In addition to challenging those decisions, the judicial review seeks to challenge the continued existence, at least in its present form, of paragraph GEN.1.11A of Appendix FM to the immigration rules and the associated guidance published by the defendant. It is the challenge to GEN.1.11A which gives the High Court jurisdiction in respect of the judicial review: see the Consolidated Direction of Lord Chief Justice given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2006 and section 18 of the Tribunals, Courts and Enforcement Act 2007 (21 August 2013, as amended on 17 October 2014).
On 23 March 2022, Hill J ordered a rolled-up expedited hearing.
As originally pleaded, Ground 1 contends that the defendant's guidance Family Policy: Family life (as a partner or parent), private life in exceptional circumstances — version 16.0 (7 December 2021), which informed the February 2022 decisions, unlawfully fails to reflect the defendant's obligations under section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children). Section 55 requires the defendant to make arrangements for ensuring that (amongst other things) any functions of hers in relation to immigration, asylum or nationality, are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. The same criticism is made of GEN.1.11A, as to which the Divisional Court in R (ST and another) v Secretary of State for the Home Department [2021] EWHC 1085 (Admin) declared on 29 April 2021 that this paragraph of Appendix FM was unlawful because it did not comply with section 55, for the reasons given in paragraphs 157–161 of the court's judgment.
For the claimants, Mr Goodman questions why, despite the Divisional Court's declaration, GEN.1.11A has not been amended by the defendant, who has only relatively recently placed an amended provision before Parliament for consideration in June 2022.
Ground 2 contends that it was irrational and/or unlawful for the February 2022 decisions to be taken without regard to relevant evidence, policy guidance and Article 3 of the ECHR.
Ground 3 asserts that the defendant breached her common law duty of procedural fairness and/or took into account irrelevant considerations, in reaching her decisions. Both Ground 3 and Ground 4 involve issues concerning the nature of the requests made by the defendant's caseworkers for information concerning the living conditions and financial circumstances of the claimants; and the defendant's response to the information which the claimants did see fit to provide.
B. THE CHANGED LANDSCAPE
For reasons which I will explain, Grounds 2 and 3 do not fall for consideration in the present judgment.
By the date of the hearing on 18 May, matters had moved on at pace. The defendant withdrew the February 2022 decisions, conceding that they had been unlawfully made, in that due regard had not been given to the defendant's policy concerning evidential flexibility. The defendant contends that the challenge to the February 2022 decisions is now to be treated as academic. The claimants disagree.
On 16 May 2022, the defendant made a new decision in respect of the NRPF condition. A few hours later, that decision was superseded by another decision of the same day, which accordingly represents the only truly “live” decision of the defendant in these proceedings.
The second decision of 16 May addresses the most recent evidence provided by the claimants concerning their living conditions. At the defendant's request, the claimants had provided photographic evidence of their accommodation.
On 17 May, the claimants made an application to amend their claim, so as to encompass a challenge to the first decision of 16 May (the second decision not having then appeared). At the hearing on 18 May, Mr Goodman spoke to this application, asking me to treat it as also now relating to the second decision of 16 May.
For the defendant, Mr Holborn's initial stance was that I should confine myself to the arguability of the challenge to the second decision of 16 May and that the challenge was, on analysis, not arguable. In essence, the claimants had not provided the information sought by the defendant.
I am in no doubt that, in the circumstances of this case, there can be no principled objection to the application to amend the grounds so as to encompass the decision-making of 16 May 2022. In R (Turgut) v The Secretary State for the Home Department [2001] 1 WLR 719, the Court of Appeal held that where, on an application for permission to apply for judicial review, the Secretary of State has been given permission to adduce evidence that he has made a new decision in light of the evidence filed by the applicant, but that decision is to the same effect as the first one, it will generally be convenient to substitute the new decision for the first decision, as the decision challenged in the proceedings.
Similarly, in Caroopen v Secretary of State for the Home Department [2017] 1 WLR 2339, the Court of Appeal held that there was nothing inherently wrong in the defendant deploying, in legal proceedings challenging the validity of her decision on an application for leave to remain, supplementary letters post-dating the challenge. Accordingly, the court could in principle take such supplementary letters into account in determining that challenge. The matter, however, was, intensely fact-sensitive in nature and would depend on the particular circumstances.
It is nevertheless important not to allow an amendment in respect of a different decision to effectively “short-circuit” the judicial review process by depriving a defendant of the opportunity they would otherwise have to see off the claim on the basis that it is unarguable. Effectively accepting this point, Mr Goodman submitted that, given that Hill J had ordered a rolled-up hearing, I could properly address the challenge in Ground 1 to the 16 May decision-making, in relation to the challenge made in respect of GEN.11.1A and the guidance (16.0), by reference to the alleged failures to comply with the duty under section 55 of the 2009 Act. This challenge to the rules and guidance had been a feature of the claimant's case throughout and there could, therefore, be no procedural unfairness to the defendant if the court were to determine this issue. If the defendant's decision-making fell to be impugned as a result, then there might be no need to consider the other grounds of challenge, concerning the evidence requested and supplied. If, on the other hand, I were to find in favour of the defendant in respect of the section 55 issue, a further hearing would be necessary to adjudicate upon the other grounds of challenge.
C. SCOPE OF THIS JUDGMENT
Having indicated my provisional view that this approach was appropriate, Mr Holborn sought instructions and argued the matter on this basis. Accordingly, this judgment deals with (i) the continued presence of GEN.1.11A, in the light of the judgment in ST; (ii) the legality of the guidance in relation to section 55; and (iii) the effect of both of these matters on the defendant's decision-making as to whether the NRPF condition should be lifted in respect of AB, with consequent effects on OK and MKD.
The defendant's rationale for NRPF being the “default” position in cases of those, like AB, who have been granted limited leave to remain by reference to Article 8 of the ECHR is articulated in the second decision of 16 May 2022, as follows:-
“Those seeking to establish their family life in the UK must do so on basis that prevents burdens on the taxpayer and promotes integration. This reflects the public interest in safeguarding the economic well-being of the UK, which is a legitimate aim under Article 8(2) of the European Convention on Human Rights in qualifying the exercise of the right to respect for private and family life.
Under Appendix FM, limited leave under the five-year partner or parent route, as a bereaved partner or as a fiancé(e) or proposed civil partner will be granted subject to a condition of no recourse to public funds.
In all other cases in which limited leave is granted as a partner or parent and Appendix FM, or in which limited leave on the grounds of private life is granted under paragraph 276BE or paragraph 276DG, or in which limited leave is granted outside the rules on the grounds of family or private life, leave will be granted subject to a condition of no recourse to public funds”.
The statement in the rules of when this “default” position will not apply is contained in GEN.1.11A. This reads as follows:-
“GEN.1.11A. Where entry clearance or leave to remain as a partner, child or parent is granted under paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT. 1.2., it will normally be granted subject to a condition...
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R (MQ) v The Secretary of State for the Home Department
...until the SoS finds accommodation adequate for the slightly longer term. 129 In the joined judicial reviews of AB, OK and MKD [2022] EWHC 1524 (Admin), Lane J considered (amongst other things) the legality of guidance on Family Policy: Family life (as a partner or parent), private life in ......