R Dong v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr CMG Ockelton |
| Judgment Date | 15 August 2014 |
| Neutral Citation | [2014] EWHC 3100 (Admin) |
| Docket Number | JR/1389/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 August 2014 |
[2014] EWHC 3100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr CMG Ockelton
(Sitting as a Deputy Judge of the High Court)
JR/1389/2014
Miss Smith (instructed by Ison Harrison Ltd) appeared on behalf of the Claimant
Mr Karim (instructed by Treasury Solicitor) appeared on behalf of the Defendant
(As approved)
THE DEPUTY JUDGE: This is an application for judicial review of a decision by the Secretary of State on or before the 29th October 2013, granting discretionary leave to remain to the claimant and her two children. It is challenged on the basis that the Secretary of State ought to have granted or ought to have properly considered granting indefinite leave to remain. Permission was granted by Her Honour Judge Belcher on the basis simply that the grounds were arguable.
The claimant is a national of Vietnam, who came to the United Kingdom in 2004 and claimed asylum. The claim was refused, an appeal was dismissed and her appeal rights were exhausted by the end of July 2004. By then she had met a man, I understand another Vietnamese national, and they had two children together, born in November 2006 and December 2007. There is an anonymity order made in relation to this case and I shall refer to the elder child, a boy as "L", and if necessary, to his sister, the younger child as "A".
For reasons which are not before me the children's father was deported following an unsuccessful appeal in the summer of 2011.
The claimant then made a further human rights application which was refused and another appeal was dismissed. In July 2013 the claimant made further representations. By then she had become a follower of the Jehovah Witnesses. Her children were attending meetings with her. By then also to become apparent that L had considerable learning difficulties and the claim was made on the basis, firstly, that their religious practice might expose them to persecution or to treatment contrary to Article 3. Secondly, that L's learning difficulties merited a grant of leave.
On 6th September 2013 the Secretary of State appears to have communicated or attempted to communicate a number of decisions in response to that claim. The asylum claim was rejected. The claim based on a risk of ill treatment arising from the family's religious practises was rejected. Any other claim under Article 3 was rejected but the Secretary of State decided, looking at all the material available to her, that it was not appropriate to remove this family or any of its members and therefore that there should be a grant of some form of leave, described in the letter and by the Secretary of State as "discretionary leave" (but I have never quite known on what basis the leave is called "discretionary"). Certainly it would have been leave outside any entitlement under the rules.
The contents of the envelope sent to the claimant's solicitors on the 6th September are a matter on which the parties are at odds. The claimants say that there was a covering letter and three letters of standard form inviting them to go to a post office to give their biometric details for a card to be produced in due course. The Secretary of State says that there was also communicated at the same time a reasoned decision that there would be a grant of discretionary leave and that that grant would be for a period of 30 months.
It is of some but probably little importance, because the claimants' solicitor's response to the communication of the 6th September was to write to the Secretary of State, indicating their view that if leave was to be granted it should be granted as indefinite leave to remain and not for a limited period of discretionary leave.
Certainly at the time the claimant's solicitors letter was written there had been no evidence of a grant of leave to the claimants; that is to say no card had been issued.
The Secretary of State responded in a letter of 29th October, indicating that the grant would be of discretionary leave for 30 months. The claimants followed that up by a pre-action protocol letter, to which the Secretary of State responded on 6th January 2014. That letter gives further reasons for the decision to grant discretionary leave and it is relied upon by Mr Karim who defends the Secretary of State's decision.
On behalf of the claimants Miss Smith raises a number of issues but in principle they amount to a criticism of the Secretary of State's decision-making process in this case. It is beyond dispute that the decisions made in this case were immigration decisions in relation to a family which included two children. They were decisions which were therefore bound to affect the children, L and A.
The Secretary of State had available to her information about L's learning disability, including the full statement of educational needs and some of the evidence submitted to those who formulated that statement. In other words, there was material from experienced educational psychologists as well as those who interact daily with L.
Section 55 of the Borders Citizenship and Immigration Act 2009 requires the Secretary of State to treat the best interests of a child as a primary consideration in making any decision relating to removal or enforcement action or any other immigration decision affecting a child. It is therefore clear and on behalf of the Secretary of State Mr Karim does not attempt to deny that in this case the obligation of the Secretary of State to give privacy to the best interests of the children was in play.
One looks therefore to see the way in which those interests were assessed and the way in which that assessment reflected the decision that was actually made. Despite my best endeavours with Mr Karim's assistance, I have been wholly unable to see the carrying out of the duty under section 55 in the decisions made by the Secretary of State in this case. That is so even if one takes fully into account the contents of the letter of 6th January, which postdated all the relevant decisions and was avowedly written in an attempt to defend them.
The first letter indicates, as I have said, that asylum and Article 3 claims are rejected. The second letter of 29th October 2013 indicates that discretionary leave of 30 months will be given. There is in that letter an analysis of the Secretary of State's conclusion that the family were not to be required to leave the United Kingdom and that therefore discretionary leave would be granted. There is a statement that indefinite leave to remain is not normally granted under such circumstances. The letter contains the following passage:
"There is of course exceptional circumstances to this, as you have highlighted in your letter of 10th December 2013. In cases involving children, decisions makers must regard the best interests of the child as a primary consideration when deciding the duration of leave granted. While the expectation is that in most cases a standard 30 months period of DL will be appropriate, there may be cases where evidence is provided showing that a longer period of leave or ILR is required in order to meet the best interests of the child under consideration. Considering the further submissions and all the evidence in the round it was not accepted that your client sufficiently demonstrated the basis for a grant of ILR or leave longer than 30 months DL. In all cases the onus is upon the claimant or their representative to provide evidence as to why it is in the best interest of the child to be granted a period of leave that is longer than the standard period of DL. Furthermore full consideration was given to your client's submissions under Article 3."
The letter goes on to reject again the Article 3 claim. So far as the letter of 6th January is concerned, the first four paragraphs of the nine paragraphs of the letter summarise the claimant's solicitor's submissions. The next two, paragraphs 5 and 6, defend the reference to Article 3 and by implication the absence of references to Article 8 and section 55 in the original decision. Paragraphs 7 and 8 read as follows:
"7. The Home Office would like to clarify that your client's child [L] was granted DLR in the United Kingdom on the basis of a number of factors including his age, his length of residency in the United Kingdom, his ties to life in the United Kingdom, his inability to speak a native language of Vietnam and the fact that he has already been in receipt of assistance in the United Kingdom for his learning disability. It was considered that on a cumulative basis that discretion should be exercised in favour of [L] and that he should be granted DLR in the United Kingdom.
8. Whilst consideration was given to your client's child's learning disability along with other individual factors, it was not accepted that [L's] individual circumstances were of such a compelling and significant nature that [L] should be afforded ILR in the United Kingdom. Accordingly the Home Office refutes in its entirety your claim that consideration was only taken in making a decision to grant DLR and not ILR to [L] on the basis of his disability.
8. The Home Office does not accept that the judgments in the cases of SM and Anr and ZH (Tanzania), which you have referred to in your letter before claim, are relevance to your client and her dependent circumstances. The judgment in the case of SM and Anr did not state that in each instance the Home Office must grant ILR not DLR to a child when exercising discretion in...
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