R (Daley-Murdock) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 23 February 2011 |
| Neutral Citation | [2010] EWHC 1488 (Admin) |
| Docket Number | Case No: CO/12820/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 February 2011 |
[2010] EWHC 1488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
AT BIRMINGHAM
Before: Mr Justice Wyn Williams
Case No: CO/12820/2009
Mr Ramby de Mello &Mr Tony Muman (instructed by JM Wilson Solicitors) for the Claimant
Mr Vinesh Mandalia (instructed by Treasury Solicitors) for the Defendant
Hearing date: 13 May 2010
Mr Justice Wyn Williams:
The Claimant is a national of Jamaica. On 15 September 2001 she arrived in the United Kingdom together with her young daughter. Her husband arrived in this country on the following day. On 8 October 2008 the Claimant applied to the Defendant to remain in the United Kingdom on two bases; first, in reliance upon Article 8 of the European Convention on Human Rights; second, in reliance upon the Defendant's policy DP5/96. By a notice of decision dated 21 July 2009 the Defendant refused the Claimant's application. The notice specified that there was no right of appeal against the decision.
These proceedings followed. Following the grant of permission to apply for judicial review the Defendant issued a decision letter dated 19 February 2010. That decision letter considered, afresh, whether the Claimant should be granted leave to remain on the basis of policy DP5/96 but concluded that leave should not be granted.
In the written skeleton argument presented on behalf of the Claimant two principal grounds of challenge are identified. First, the Claimant asserts that it was unlawful and/or unreasonable not to grant her a right of appeal against the Defendant's decision to refuse leave to remain. Second, the Claimant asserts that the Defendant's decision to refuse leave to remain was unlawful and/or unreasonable and based on an incorrect application of Article 8 of the European Convention on Human Rights and/or the policy DP5/96. In a speaking note provided to the court by Mr de Mello, Counsel for the Claimant, the issues arising for my decision are reformulated as follows. First, is the decision of 19 February 2010 an immigration decision for the purposes of section 82(2)(d) or (g) Nationality, Immigration and Asylum Act 2002 (hereinafter referred to as “the 2002 Act”)? Second, is the decision not to grant a right of appeal irrational or a breach of Article 8 of the European Convention? Third, is the decision not to grant leave to remain a breach of Article 8 or a breach of DP5/96? As it happens during the course of the oral argument each of the propositions advanced in writing were reformulated to some extent. In the section of this judgment headed “Discussion” I will deal with each issue raised by the Claimant as it appeared to be in its final form.
Factual History
Upon her arrival in the United Kingdom on 15 September 2001 the Claimant and her daughter were granted leave to enter as visitors until 14 October 2001. On 16 September 2001 the Claimant's husband arrived separately and he, too, was granted leave to enter until 14 October 2001. In due course all three were granted leave to remain in the United Kingdom as visitors until 30 July 2002.
The Claimant and her family did not leave the United Kingdom on or before 20 July 2002. She and her family became “overstayers”.
On 5 July 2003 the Claimant gave birth to her second child, a son. No steps were taken until 2008 to obtain leave for him to remain within the UK.
According to a witness statement made by the Claimant and dated 5 May 2010, the Claimant has been working for substantial periods since her arrival in the United Kingdom. She says that she began work in early 2002 and the impression to be gained from paragraph 8 of her witness statement is that she has worked more or less continuously from that time until some time in 2008. In that same period her husband has also been working.
Both the Claimant's children are at school. Presumably, they began school on their third birthday or as soon thereafter as they could be placed.
As I have said the Claimant applied to remain in the United Kingdom on 8 October 2008. She completed a pro forma application form and supplied documentation in support. The documentation provided to the Defendant included documentation which revealed that the Claimant had been working in the United Kingdom. In the application form the Claimant described her husband and two children as her dependants.
On 21 July 2009 the Defendant issued four separate decision notices in relation to the Claimant, her husband and the two children. For all practical purposes each notice was in identical form and, accordingly, it is sufficient to describe and quote from the notice issued to the Claimant. The notice is entitled “Notice of Decision” and immediately following those words the following appears
“ REFUSAL TO GRANT LEAVE TO REMAIN
Paragraph 322(1) of HC395 (As amended)
To Kerry Ann Veronica Daley-Murdock Jamaica 28 May 1980
You applied for leave to remain in the United Kingdom, but your application has been refused.
The Secretary of State has refused your application because you are applying for leave to remain for a purpose which is not covered by the immigration rules.
You made an application on 8 October 2008. However, your leave to remain expired on 30 July 2002. You therefore did not have leave to remain at the time of your application.
There is no right of appeal against this decision.
You have no right to stay in the United Kingdom so are liable to be removed. You must leave as soon as possible. If you do not leave voluntarily, you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine of up to £2500 and/or to 6 months' imprisonment and you will also be liable to be removed from the United Kingdom to Jamaica.
Your documents have been forwarded to your Regional Case Ownership Unit/Local Enforcement Office. You must now contact them….. by 31 July 2009 at the latest to discuss your departure from the United Kingdom prior to your making any firm travel arrangements.
Help and advice on returning home can be obtained from the Immigration Inquiry Bureau……”
The decision notice issued by the Defendant was accompanied by a letter (also dated 21 July 2009) which explained the reasoning which led to the decision. I deal with the contents of this letter later in this judgment.
Policy DP5/96
This policy is no longer in force. However, it was in force at the time when the Claimant made her application for leave to remain in October 2008. The history, scope and application of this policy was subject to detailed analysis in the judgment of the Court of Appeal (delivered by Rix LJ) in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906.
The policy is engaged when the Secretary of State is considering an application for leave to remain in this country by a parent who has no leave to remain but whose children have resided here for more than 7 years. In such circumstances the Secretary of State should start from the position that it is only in exceptional cases that indefinite leave to remain will not be given but then go on to consider the extent to which any of or a balancing of all the factors mentioned in the policy statement makes the case an exceptional one (see paragraph 39 of the judgment in NF (Ghana).
The factors mentioned within the policy statement which are those to be considered when deciding whether a case is exceptional are conveniently set out in paragraph 29 of the judgment in NF (Ghana). For ease of reference I repeat them here:—
“Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom.
For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence.
However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of a child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. in all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:
• the length of the parents' residence without leave: whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
• the age of the children;
• whether the children were conceived at a time when either of the parents had leave to remain;
• whether return to the parents' country of origin would cause extreme hardship to the children or put their health seriously at risk;
•whether either of the parents has a history of criminal behaviour or deception.
It is important that full reasons are given making clear that each case is considered on its individual merits.”
Discussion
The first issue which arises for consideration is whether or not the Defendant acted lawfully when it refused the Claimant's application for leave to remain in its decision dated 21 July...
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