R Krystian Dabrowski Damian Dabrowski Ursula Kasprowicz and The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LORD JUSTICE LAWS,Lord Justice Sedley,LORD JUSTICE SIMON BROWN |
| Judgment Date | 07 April 2003 |
| Neutral Citation | [2003] EWCA Civ 580 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 April 2003 |
| Docket Number | C/2002/2308 |
[2003] EWCA Civ 580
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT
(MRS JUSTICE RAFFERTY)
QUEEN'S BENCH DIVISION
lord Justice Simon Brown (vice President of the Court of Appeal, Civil Division)
Lord Justice Laws
Lord Justice Sedley
C/2002/2308
MR B ALI (instructed by Noden & Company, London W10 5LJ) appeared on behalf of the Applicants
MR T EICKE (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
This case raises an issue of some importance. Does the Home Secretary's announced policy of not necessarily proceeding with removal or deportation of parents of young children who have seven or more years of continuous residence in the United Kingdom apply to port cases —that is to say, cases where no more than temporary admission has been granted to persons who have claimed asylum at the port of entry?
The applicants in the present case are a mother and her two young sons. Their country of origin is Poland, where the mother was born in 1965. She was married in 1984 and the two children were born in May 1990 and June 1993. All four arrived as a family in the United Kingdom in January 1995 and claimed asylum, essentially on the ground that as Roma they had been subject to severe persecution by skinheads, against which the state was either unwilling or unable to protect them. The claim was made in the father's name, treating the other three as his dependants, and in the event it failed. In September 1999 they therefore returned to Poland.
Three months later, just before Christmas 1999, the mother and the two sons returned to the United Kingdom, making a fresh claim for asylum on the ground that persecution had been renewed and that, even if there had not been before, there was now an insufficiency of protection. That claim was refused, first administratively and then judicially by an adjudicator in December 2000. The Immigration Appeal Tribunal refused permission to appeal. In April 2001 the three claimants made a human rights application in support of an application for leave to remain. That was refused in the October, and an appeal under section 65 of the 1999 Act was dismissed in March 2002. In the interim, in January 2002, the seven-year point from the family's first arrival in the United Kingdom had been reached.
All avenues of recourse having failed, removal directions were set for 18 June 2002. Four days before the removal date, an application was made on behalf of the mother and the two boys for leave to enter or remain on the basis of the Home Secretary's long residence policy. The application was refused the following day but removal was suspended while the propriety of the refusal was canvassed by solicitors who were commendably active on the applicants' behalf.
Finally, on 18 June 2002, a letter before claim was written and on 19 July a reply came over the signature of a chief immigration officer explaining the reasons for refusal. It was followed on 13 August 2002 by a slightly fuller letter from the Home Office, again explaining the refusal. I will come in a little while to the content of those letters. The letter before claim was followed by an application for permission to apply for judicial review of the refusal of exceptional leave to enter or remain, which was dismissed on the papers by Silber J and in October 2002 by Rafferty J upon renewal in open court, when the matter was argued on both sides.
An application for permission to appeal came before me as a desk application and I granted it in the form —since the case had not so far proceeded beyond refusal of permission to seek judicial review —of a grant of permission to apply for judicial review. Since the application before Rafferty J had been argued on both sides and a reserved judgment, clearly the product of careful consideration, had been delivered, I directed that the substantive application was to proceed in this court, as it has done.
What I wrote by way of reasons for the grant of permission was this:
"The single question which merits this court's attention is whether policy DP 069/99 applies to port entry cases. If it does, a CIO [Chief Immigration Officer] cannot determine that it does not.
The essential arguments are (a) that nothing in the policy excludes these cases and (b) that to exclude them puts lawbreakers in a better position than entrants who declare themselves.
If the policy does apply to the claimants, it is not necessarily an answer that it is 'only a policy': the law expects reasonable consistency of treatment. There seems no reason why such a policy cannot accommodate a 3-month break in residence such as occurred here, though that will not be a matter for the court."
We have had today the advantage of well-directed and concise submissions from Mr Ali (in contrast, I have to say, to his skeleton argument which roved over a great deal of terrain lying beyond the grant of permission to appeal) and from Mr Eicke for the Home Secretary.
The policy which the applicants submit ought to have been, but was not, applied is a policy known as DP 5/96, as modified first by a Parliamentary written answer of 24 February 1999 and secondly by a letter dated 19 April 1999. Together these have been re-coded as DP 069/99; hence the reference in my reasons for granting permission. DP 5/96, as promulgated in March 1996, read:
"Deportation in cases where there are children with long residence.
Introduction
The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged ten or over or where, having come to the United Kingdom at an early age, they have accumulated ten years or more continuous residence.
Policy
Whilst it is important that each individual case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had a leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception.
3. When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits."
The Parliamentary answer of 24 February 1999 was given by Mr Mike O'Brien and read as follows:
"For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue the enforcement action against people who have children under 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdome continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."
The letter of 19 April 1999 which followed (and it was, one has to say, an odd way to promulgate a policy, since it was addressed by Immigration Service Headquarters to one firm of solicitors in south London) said:
."The concession announced by Mr O'Brien on 24 February applies to enforcement cases [ie] those where one or both of the parents is subject to action to remove them from the United Kingdom, either by deportation or removal as an illegal entrant. It applies to all cases irrespective of whether a deportation order has been signed.
Enforcement cases involving children with seven or more years residence will be reviewed as and when they come to light."
To these policy materials Mr Eicke adds the Immigration and Nationality Instructions issued to Home Office decision-makers, which in paragraph 5 of chapter 18 set out tests for continuity of residence. These instructions are self-evidently internal documents but we are told that they are publicly available on the Home Office website. On this footing Mr Ali has not objected to our considering the material as a further element of ministerial policy. It provides in its material part:
"Continuity of residence should be considered as being broken if the applicant:
· was removed or deported from the United Kingdom;
· at the time of his departure there is evidence to indicate that he had no intention of returning or there was an absence of strong ties to the United Kingdom; or
· a lengthy absence which can be considered to have severed ties with the United Kingdom."
It is convenient to...
To continue reading
Request your trial
-
Ruksana Hassan & Others v Secretary of State for the Home Department
...the Claimants had not even been thought about by the SSHD. 57 I reject Mr Mello's argument based on cases such as Dabrowski v. SSHD [2003] EWCA Civ 580, MA (Seven Year Child Concession) Pakistan [2005] UKIAT 00090, R (A) v SSHD [2008] EWHC Admin 2844 and Ghana v. SSHD ( Supra). These cases ......
-
R (on the application of A) v Secretary of State for the Home Department
...Home Dept[2008] EWCA Civ 906, [2008] All ER (D) 409 (Jul). R (on the application of Dabrowski) v Secretary of State for the Home Dept[2003] EWCA Civ 580, [2003] All ER (D) 101 R (on the application of MR) v Secretary of State for the Home Dept, R (on the application of TI) v Secretary of St......
-
NF (Ghana) v Secretary of State for the Home Department
...the sake of completeness we refer to R(On the application of Dabrowski) v Secretary of State for the Home Department [2003] EWCA 580, [2003] Imm AR 454. Dabrowski's Addendum (extracts from a written statement of a senior executive officer of the Enforcement Policy Unit of the Immigration Se......
-
Application For Leave To Appeal By Cb Against A Decision Of The Asylum And Immigration Tribunal
...did not then apply to the applicant's situation (cf R (on the application of Dabrowski) v Secretary of State for the Home Department [2003] EWCA Civ 580). There was no obligation on the respondent to consider the policy subsequently, in the narrow window of opportunity between the seventh b......