R Krystian Dabrowski Damian Dabrowski Ursula Kasprowicz and The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Rafferty |
| Judgment Date | 29 October 2002 |
| Neutral Citation | [2002] EWHC 2183 (Admin) |
| Date | 29 October 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2971/2002 |
[2002] EWHC 2183 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mrs Justice Rafferty
Case No: CO/2971/2002
Mr Basharat Ali (instructed by Noden & Co Solicitors) for the Claimants
Mr Eicke (instructed by Secretary of State) for the Defendant
Consequent upon a refusal by Silber J on 31 st July 2002 this is a renewed application for permission to apply for judicial review. The challenge is to the decision dated 15 th June 2002 by the Secretary of State for the Home Department in which he refused the application of the Claimants and of Alexander Dabrowski for leave to remain in the UK on the basis of his long residence policy (DP 069/99); to his refusal of their application for leave to remain on the basis of family life; and as to the setting of removal directions for the return of the Claimants to Poland.
On the 29 th November 1965 the third Claimant was born in Poland. In 1984 she married her husband who is the father of the other two Claimants the first of whom was born on the 7 th May 1990, the second on the 29 th June 1993, each in Poland. After physical attacks and threatened rapes the Claimants on the 13 th January 1995 left Poland and arrived in the United Kingdom claiming asylum. That claim was rejected and Alexander Dabrowski the third Claimant's husband was returned to Poland. In September 1999 all the Claimants returned voluntarily to Poland to be with him. Upon their return the harassment and discrimination previously suffered continued. By December 1999 the second Claimant had been attacked and Alexander left the rest of his family. By 13 th December 1999 the Claimants had returned to the United Kingdom, the third Claimant claiming asylum citing the other two as her dependants.
On the 22 nd January 2000 the Defendant rejected the asylum application and on the 16 th March 2000 the Claimants appealed. By the 14 th December 2000 that appeal had been heard and dismissed on the basis of sufficiency of protection in Poland. Leave to appeal was refused by the IAT. On the 17 th April 2001 solicitors previously representing the Claimant made a Human Rights application to the UK Immigration Service at Heathrow Airport. On the 15 th October 2001 by letter the Defendant refused it. On the 31 st October 2001 notice was given of a Section 65 appeal. On the 27 th February 2002 the Human Rights Appeal was heard by the Adjudicator who in a promulgation of the 12 th March 2002 dismissed it. On the 25 th March 2002 the Claimant sought leave to appeal against his decision, on the 4 th June 2002 removal directions were set, that same day an application was submitted for leave to remain, and it was rejected on the 15 th June. On the 16 th June solicitors for the Claimant asked the Defendant for reasons, and on the 17 th notified their intention to issue judicial review proceedings. Temporary admission was granted until the 25 th June 2002.
Policy modification was announced by the Under Secretary of State of the Home Department, Mr Mike O'Brien, on the 24 th February 1999. It reads where relevant as follows:—
35. Deportation in cases where there are children with long residence: policy modification announced by Under Secretary of State for the Home Department Mr O'Brien on the 24 th February 1999 references [1121]-[1130]
3.1 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 usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] 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 the 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 for the children or put their health seriously at risk;
whether either of the parents has a history of criminal behaviour or deception.
It is not in contention that the Claimants have accumulated in excess of 7 years here, even allowing for their brief two-month absence in 1999.
The Claimants are "port" cases. On each entry to the UK they applied at port and were granted temporary admission. That is permission to stay whilst their application for leave to remain is considered.
In R v Secretary of State for the Home Department ex parte Mobin Jagot [2000] INLR 501, in an application for judicial review the issue was whether the SSHD were entitled to conclude that the applicant, then 14, should be refused indefinite leave to remain. Despite his having spent a substantial formative part of his life in the UK, the SSHD decided that there were strong reasons for him to be uprooted. He was Malawi born, and had come to the UK with his grandparents, arriving in 1990 with three months leave to enter expiring in April 1991 but his education in English schools continued thereafter. In 1998 he was sent to Malawi to visit a maternal grandmother. He was extremely unhappy, did not speak the language, felt a stranger, returned to the UK in April 1998, and sought leave to enter, which was refused. Letters were exchanged between his solicitors and the Immigration Service Headquarters. There was no reason to grant indefinite leave to remain...
To continue reading
Request your trial
- R Krystian Dabrowski Damian Dabrowski Ursula Kasprowicz and The Secretary of State for the Home Department
-
NF (Ghana) v Secretary of State for the Home Department
...... we refer to R(On the application of Dabrowski) v Secretary of State for the Home Department ......
-
MA (Pakistan) and Others v Secretary of State for the Home Department
...Disproportionate) Bangladesh [2004] UKIAT 00208 R (on the application of Dabrowski) v Secretary of State for the Home DepartmentUNK [2002] EWHC 2183 (Admin) R v Secretary of State for the Home Department ex parte Gangadeen and Jurawaran and R v Secretary of State for the Home Department ex ......
-
Upper Tribunal (Immigration and asylum chamber), 2005-04-22, [2005] UKIAT 90 (MA (Seven year child concession))
...Long Residence Concession related solely to those who were the subject of enforcement action. (We would also note that in Dabrowski [2002] EWHC 2183 (Admin) Rafferty J rejected a contention that the Seven Year Child Concession formally applied to port cases). However, the same statement had......