R (AM (Kenya)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Lord Justice Wilson,Lord Justice Ward |
| Judgment Date | 13 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1009 |
| Docket Number | Case No: C4/2009/0106/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2009 |
[2009] EWCA Civ 1009
COURT OF APPEAL (CIVIL DIVISION)
ADMINISTRATIVE COURT
Mr Justice Munby
CO/6530/2007
ON APPEAL FROM QUEEN'S BENCH DIVISION
Before : Lord Justice Ward
Lord Justice Wilson and
Lady Justice Hallett DBE
Case No: C4/2009/0106/QBACF
CO/6530/2007
Richard Drabble QC and Mr Ranjiv Khubber (instructed by Messrs Turpin and Miller) for the Appellant
Mr Sarabjit Singh (instructed by Treasury Solicitors) for the Respondent
Hearing date : 24 th June 2009
Lady Justice Hallett:
The appellant applied to the Secretary of State for the Home Department to grant her the discretionary benefit of a policy known as “the” Family Indefinite Leave to Remain (ILR) Policy. He refused and she was notified of the decision in a letter dated 1st May 2007. She was given permission to apply for judicial review of the decision. Munby J in a judgment delivered on 18th December 2008 refused her application. She now has permission to appeal his decision.
Factual Background
Jane Wanjiku Nyoike arrived in this country from Kenya and claimed asylum at Heathrow airport on 15th October 1995. Seven years later, on 4 th October 2002, the appellant, who says she is the daughter of Ms Nyoike's brother, also arrived in the UK from Kenya. She was then aged 14 having been born on 10th November 1987. She is an orphan. Her mother, who was HIV positive, drowned herself in January 1999. Her younger sister died in April 2000 of malaria aged 4. Her father died the same year of HIV-AIDS. Left alone, she was taken in by her mother's family but ill-treated by them. She ran away to live on the streets. She was rescued in 2002 by an American who worked with street children and who was able to locate her aunt Ms Nyoike. I should interpose here that the Secretary of State remains unconvinced that the two are related in the way claimed but we have been invited to proceed on the basis that they are.
The appellant was brought to this country by an agent and went to live with her aunt. The aunt has acted in loco parentis to her for the last six years and the appellant sees her as her mother in both psychological and emotional terms. The aunt reciprocates those feelings and says that the appellant has been financially and emotionally dependent upon her since she arrived in the UK.
Applications for asylum and ILR
The aunt's claim for asylum was initially rejected by the Secretary of State but was allowed on appeal by an Adjudicator on 24th July 2000. On 13th December 2000 the Secretary of State wrote to the aunt. She accepts that she received the letter. The Secretary of State informed her that the decision had been taken to grant her indefinite leave to enter in the United Kingdom as a refugee recognised under the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The date on which her application was recorded as having been determined was 13th December 2000. On 29th January 2001 the Immigration Officer at Heathrow wrote to the aunt again. The letter is stamped “Given indefinite leave to enter the United Kingdom.” The aunt claims she never received the letter. On 22nd November 2001 an advice centre wrote on her behalf to the Secretary of State.
On 9th October 2002 the aunt, relying on her own grant of ILR, swore a statutory declaration in support of the appellant's application for ILR as her dependent. This was a year before the Family ILR policy at the heart of this appeal was announced. The application was acknowledged by the Secretary of State on 6th December 2002.
Chasing letters about the aunt's claim were sent by her solicitors on 16th December 2003 and 3rd February 2004. On 5th March 2004, the aunt's solicitors threatened judicial review. On 29th April 2004 the Secretary of State responded with a letter similar to the earlier letter dated 29th January 2001. Enclosed in the letter was an 'Immigration Status Document', endorsed with indefinite leave to enter the United Kingdom; the letter explained that “It is this endorsement that constitutes proof of your immigration status in the United Kingdom.”
Meanwhile, the policy of which the aunt and, therefore, the appellant seek to take the benefit was announced on 24th October 2003. The reasons for the announcement are well established. By 2003 the Home Office found itself faced with a sizeable backlog of asylum applications. This presented a number of difficulties which included the annual cost of supporting asylum seekers, the time and expense of dealing with asylum applications from family members and the difficulty of getting all members of a family together ready for removal. The Home Office took a pragmatic view and introduced the Family ILR policy which was intended as a “one off desk clearing exercise”. It is a concessionary policy which allows qualifying families to be granted ILR outside the Immigration Rules in certain circumstances. It had the advantage of recognising the situation of families who have been settled in this country for some years and have started to develop ties with the community. For a fuller exposition of the background to, and reasons for, the Family ILR policy we have been referred to the judgments in AL (Serbia) v SSHD [2006] EWCA Civ 1619, R (Rudi) v SSHD [2007] EWHC 60 (Admin) and R (Dr Franco) v SSHD [2007] EWHC 407 (Admin).
The policy has since been amended a number of times. It is common ground that we are concerned with the current version of the Family ILR policy, embodied in a document dated 21 June 2006 (but taking effect from 12 June 2006). This is headed “One-Off Exercise to Allowing Qualifying Asylum Seeking Families to Stay in the UK”. The basic criteria for deciding if a family qualifies for the exercise were twofold:
1. The applicant made an application for asylum before 02/10/00
2. The applicant had at least one dependant aged under 18 (other than a spouse or civil partner) in the UK on 2nd October 2000 or 24th October 2003.
The application for asylum was further defined as an asylum claim that (i) has not yet been decided, (ii) has been refused and is subject to appeal, (iii) has been refused and there is no further avenue of appeal but the applicant has not been removed, (iv) has been refused but limited leave has been granted; (v) decided in their favour and limited leave to remain as a refugee has been granted. Dependents were further defined as a child of the applicant, their spouse or civil partner who was financially and emotionally dependent on the applicant, and who formed part of the family unit in the UK, on the relevant date (ie 2nd October 2000 or 24th October 2003).
Dependants of the qualifying applicant could then qualify for ILR “in line” to the qualifying applicant provided they met the following definition: “a dependant is any spouse, civil partner or child of that applicant, or any child of their spouse or civil partner, who formed part of the family unit in the UK on 24 th October 2003”.
It is important to note that even if a family unit met all the criteria as defined, there were a number of exclusions for example where any member of the family had a previous conviction for a recordable offence.
Under the amended policy the Home Office retained a discretion the note to which read:
“Discretionary consideration
This note sets out the principles which will ordinarily be applied in operating this policy. Consideration will be given to exercising discretion to grant ILR, however, where ILR does not fall to be granted under the terms of the policy set out here. Such discretion will be exercised only in the most exceptional compassionate cases. Families who believe that their circumstances merit consideration on this basis must provide full details and supporting evidence.”
On 17th December 2004, with the appellant's application for ILR on what I shall call compassionate grounds still pending, the appellant's solicitors made an application for ILR under the Family ILR policy on behalf of both the aunt and the appellant, claiming they came within the basic criteria of the policy. The appellant's solicitors wrote on 10th March 2005 again threatening an application for judicial review. The Secretary of State in a letter dated 30th March 2005 requested further information which was supplied by letter dated 27th April 2005. Another chasing letter was sent on 29th June 2005. An acknowledgment dated 5th July 2005 apologised for the delay but said that the Secretary of State was awaiting verification of certain documents, following which the case would be treated as a “priority”. Yet months passed. The appellant's solicitors wrote again on 21st February 2006. When that letter too went unanswered, on 16th March 2006 the appellant's solicitors wrote to her Member of Parliament. This seems to have prompted a reaction, at last, because finally on 30th June 2006, the Secretary of State wrote stating the 2002 application was rejected.
The official writing on the Secretary of State's behalf began by commenting that the appellant was an illegal entrant and liable to removal action. He or she acknowledged the appellant's circumstances and her dependence on her aunt as a child but observed that the appellant was by then 18 and of an age when she is expected to be independent of others and able to establish a private and family life of her own. Nevertheless the author went on to consider whether it would be appropriate “exceptionally” to allow the appellant to remain outside the...
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