LM and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Clare Moulder |
| Judgment Date | 20 June 2014 |
| Neutral Citation | [2014] EWHC 2015 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1273/2013 |
| Date | 20 June 2014 |
[2014] EWHC 2015 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Moulder
(Sitting as a Deputy Judge of the High Court)
Case No: CO/1273/2013
The Queen On the application of
Mr Raza Halim (instructed by Kesar & Co) for the Claimants
Mr David Blundell (instructed by Treasury Solicitor) for the Defendant
Hearing date: 10 June 1013
This is the hearing of an application for judicial review by the claimants who are all nationals of Nigeria. The first and second claimants are husband and wife and the third and fourth claimants are their two minor daughters. The case as put before me in oral argument is firstly, a challenge to the transitional provisions of HC 820 and secondly, a challenge to the legality of paragraph 276BE of the immigration rules in the light of section 55 of the Borders, Citizenship and Immigration Act 2009.
At the start of the proceedings I granted the application for an anonymity order (which was unopposed by the defendant) on the basis that two of the applicants are children.
Background
The claimants entered the UK on 25 March 2004 with leave to enter as visitors. After the expiry of their leave they remained as overstayers. On 3 September 2010 an application for leave to remain was refused and the family was served with removal decisions. Their appeal was dismissed on 23 December 2010 and permission to appeal was refused. The first claimant made further submissions on 16 March 2012 with his wife and daughters as his dependants. The Secretary of State refused to recognise those further submissions as a fresh claim on 5 November 2012. The claimants served a letter before claim on 19 November 2012.
On 22 November 2012 the Secretary of State laid before Parliament a statement of changes to the immigration rules HC 760. Amongst other things this inserted the words (paragraph 201 of HC 760):
" and it would not be reasonable to expect the applicant to leave the UK"
at the end of paragraph 276ADE(iv) of the rules. Paragraph 276ADE deals with applications for leave to remain on the grounds of private life. The changes were expressed to take effect from 13 December 2012. Paragraph 4.3 of the explanatory memorandum to HC 760 expressly stated that:
" if an applicant has made an application for entry clearance or leave before 13 December 2012 [under paragraph 276 ADE(iv)] and the application has not been decided before that date, it will be decided in accordance with the rules in force on 12 December 2012."
The Secretary of State responded to the letter before claim in the decision letter of 30 November 2012. That letter gave further consideration to the claimants' claims in particular the position of the two children. The letter contained the following passage at page 2:
" you are respectfully reminded that the requirements of paragraph 276 ADE are to be met by the applicant, who, in this case is Mr [M]. [EM] and [EuM] are merely dependents on their father's claim. Should the children wish to make applications under paragraph 276 ADE in their own right, then it is, of course, open to them to do so. However, you are respectfully reminded both of the impending change in the immigration rules, due to take place on 13 December 2012 and that such an application is chargeable."
On 12 December 2012 the third and fourth claimants made two independent applications to the Secretary of State under paragraph 276ADE. On the same day the Secretary of State laid before Parliament the statement of changes HC 820. Paragraph 1 provided that the changes introduced by paragraph 201 of HC 760 " shall apply to all applications decided on or after 13 December 2012, regardless of the date the application was made."
The explanatory memorandum stated (paragraph 2.1):
"the purpose of these changes is
to apply most of the changes to the immigration rules on family and private life contained in the statement of changes in immigration rules laid on 22 nd of November 2012 (HC 760) to all applications decided on or after 13 December 2012, rather than only to applications made on or after that date. This will provide greater clarity for applicants and for UK border agency caseworkers as to the requirements in respect of the family and private life applicable to all applications decided from 13 December 2012." [Emphasis added]
The explanatory memorandum at paragraph 7.3 states:
" the changes in HC 760 mainly have the effect of clarifying and simplifying the rules to reflect operational experience, since major changes were implemented on 9 July 2012 and to make the rules as clear and comprehensive as possible. It is appropriate that UK border agency caseworkers should be able to apply those changes to any application relating to family or private life which falls to be decided on or after 13 December 2012."
Paragraph 7.4 states:
" to the extent this approach may disadvantage an applicant whose application under the family or private life rules on or after 9 July 2012 was not decided before 13 December 2012, this is justified because the changes made by the statement of changes HC 760 correctly reflect the Secretary of State's view of the proper balance to be struck under article 8 of the European Convention on Human Rights….. between individual rights and the public interest, and of how best to safeguard the welfare of children. Published UK border agency guidance will make clear to caseworkers that such cases should not be refused because they do not meet a new requirement of the family or private life rules in force from 13 December 2012, without being given a reasonable opportunity to demonstrate whether they meet that new requirement."
On 27 March 2013 the child claimants' applications were refused. On 5 July 2013 permission was granted on the application for judicial review by Mr John Howell QC, sitting as a deputy judge in respect of a challenge to HC 820 but not to the claimants' fresh claim challenge. The fresh claim challenge is no longer being pursued on the basis that the decision of 5 November 2012, which was originally challenged by the judicial review proceedings, was withdrawn.
When granting permission on this application for judicial review, Mr John Howell QC commented:
" it is at least arguable that the change made by HC 820 "to provide greater clarity for applicants and for UK border agency caseworkers as to the requirements in respect of the family and private life applicable to all applications decided from 13 December 2012" was unlawful. It is at least arguable (i) that applicants before that date, who had relied on the implementation provisions of paragraph 201 of HC 760 (such as two of the claimants here in particular given what was said in the letter from the UKBA dated November 30, 2012) had a legitimate expectation that paragraph would not apply to their applications and (ii) that the reason provided for the change does not provide a sufficiently compelling reason in the public interest for disappointing it (given that it was already clear from HC 760 itself to applicants and decision-makers how applications made before December 13, 2012, were to be determined after that date)."
The March decisions were withdrawn and new decisions were made in respect of the child claimants on 5 July 2013 granting leave to remain for 30 months until 5 January 2016. The decision letters stated that they should apply for further leave to remain before the expiry of their current grant and providing they continue to meet the criteria as set out in Ex1 of Appendix FM or the relevant legislation at the time of the application they will qualify for another grant of 30 months. Further applications will need to be made until 120 months have accrued after which they can apply for settlement. The parents were granted leave in line with the children on 9 July 2013. All the claimants have now been granted residence permits and have leave to remain until 5 January 2016.
Permission to amend grounds
The claimants originally sought permission to amend their grounds of claim in two respects. However the second ground set out in the amended grounds filed with the court was not pursued at the hearing.
By Ground 3, relying on the decision in R (SM & Anor) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) the claimants seek to challenge the lawfulness of the grants of leave pursuant to paragraph 276BE on the basis that the immigration rule fetters the Secretary of State's discretion to grant child applicants longer than 30 months leave to remain and that this is inimical to a fact sensitive consideration of the child's best interests as required by section 55 of the Borders, Citizenship and Immigration Act 2009.
The claimants formally filed their amended Grounds of claim on 26 September 2013 and the defendant filed her detailed grounds of defence, including representations in respect of the application for permission to amend grounds on 17 April 2014. Thus, there can be no argument in this case that the claimants have sought to amend their grounds at the last minute, or that the defendant has not had an opportunity to respond to the amendments sought and counsel for the defendant stated at the oral hearing that he did not oppose the application to amend the grounds. Further I took account of the fact that the decision to grant the claimants leave to remain during the currency of the proceedings meant that the scope of the challenge has...
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