R Mansoor v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Blake
Judgment Date23 March 2011
Neutral Citation[2011] EWHC 832 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4453/2010
Date23 March 2011

[2011] EWHC 832 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Birmingham

B4 6DS

Before: THE HONOURABLE MR JUSTICE BLAKE

Case No: CO/4453/2010

Between
The Queen on the application of Mansoor
Claimant
and
Secretary of State for the Home Department
Defendant

Mr Mahmood (instructed by the Immigration Advisory Service) appeared on behalf of the Claimant

Mr Mandalia (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

Mr Justice Blake

Mr Justice Blake:

Introduction

1

This is an application for judicial review of decisions of the Secretary of State for the Home Department taken between 20 October 2009 and 8 March 2011, rejecting representations made by the claimant, Mrs Mansoor, seeking indefinite leave to remain in the United Kingdom in order to continue to reside with her husband and children who are all lawfully resident here.

2

The case has a substantial immigration history but for present purposes it may be summarised that after a variation of leave appeal was rejected in her case, representations were made on her behalf in March 2009 by the Immigration Advisory Service leading to the three objections which are summarised. Permission to move for judicial review was granted on renewed application on 20 September 2010 and thereafter the subsequent post-permission decision was taken in March 2011, which has formed the basis of skeleton arguments drafted by counsel on both sides who have appeared today.

3

As will become apparent, the subject matter of this particular problem has been the subject of legal developments that have significant impact upon the approach to be adopted by the Secretary of State and the courts. At the outset of this hearing I raised with both counsel a number of concerns that I had about the decision-making in this case, some reflected in the skeleton argument of the claimant and some not there spelt out. Very properly those concerns were considered by Mr Mandalia, counsel for the Secretary of State, and at some point in the morning an application was made for him to seek instructions, as a result of which it was indicated that upon further consideration the claimant would be granted indefinite leave to remain. Thereafter this was no longer a contested matter as far as the outcome was concerned. Mr Mahmood nevertheless invited me to direct that the hearing should continue so any defects in the decision making could be corrected and guidance given for the future. I consider that this is an appropriate case for continuing the hearing and for a judgment to be given. I give leave for this judgment to be published.

The factual background

4

With that brief introduction I return to the detailed analysis of the pertinent facts that as always must provide the context for the broader issues deployed in the case.

5

The claimant's husband, like the claimant herself, came from the Yemen. The claimant's husband was born in 1958 and the claimant in 1960. They had born to them during the currency of a marriage which was located in the Yemen seven children, born respectively in August 1986 (Bashir now 24) February 1988 (Aishir now 23); 3 March 1990 (Ragab now 21); 5 June 1992 (Morsal now 18); 12 December 1994 (Mohamed now 16); 20 April 1996 (Nathear now 14) and either 1 March or 1 May depending which document is accurate (Morthatha now aged about 12).

6

The husband came to the United Kingdom in 1998. He was admitted in some capacity which led to indefinite leave to remain and in due course, on a date presently unknown but before the arrival of his family, he was naturalised as a British citizen. The claimant plus all seven of the children came to this country on 30 April 2005 with entry clearances operating as leave to enter for herself and all children to join their husband/father. Following the terms of the then applicable Immigration Rules all of the seven children were given indefinite leave to remain on arrival. The claimant has a spouse and, on seeking admission to the United Kingdom for settlement with a spouse for the first time, was given limited leave of two years, with the condition that there should be no recourse to public funds.

7

The requirement for a spouse to live for two years before being eligible for indefinite leave to remain was introduced in about April 2003, amending the previous practice, where a probationary one-year period was applied to ensure that marriages were bona fide, durable and deserving of the immigration consequences that indefinite leave to remain would provide (see Macdonald Immigration Law and Practice 6 th Edition (2005) at 11.69).

8

At the time that the claimant and her seven children arrived in the UK, the husband was able to satisfy the requirements of the Immigration Rules as to maintenance and accommodation without recourse to public funds because he had a rented home and he was in employment. If his employment had continued then the problems which arose in this case would not have existed, but according to the findings of the Immigration Judge (IJ) who considered this case in 2007, the husband was made redundant in August 2006. A month later he had recourse to housing benefit and some form of income supplement to support himself and his family, who at that time were all living in the same house.

9

Six months after this in March 2007 the claimant applied for indefinite leave to remain as the second anniversary of her admission as a spouse was fast approaching. The marriage was still subsisting. The couple continued to live together as man and wife, in one household; they did so with all their children now two years older than they were on arrival. However, the IJ observed that as the husband was claiming public funds in the form of income support and housing benefit, there was a difficulty about the claimant's ability to continue comply with the Rules precluding recourse to public funds.

10

As a result the IJ concluded that she did not qualify for indefinite leave to remain under the rules and the appeal was dismissed on that basis. It is perhaps worth noting that according to Macdonald Immigration Law and Practice 8th edition Volume I paragraph 4.5.1:

"An applicant is not treated as having recourse to public funds by relying on public funds provided to the sponsor in his or her own right provided that the applicant's presence in the United Kingdom has not resulted in increased entitlement for the sponsor."

HC 395 para 6A, inserted by Command 4851 in 2000, is cited as authority for that proposition.

11

Here the husband, would have been entitled to income support and housing benefit for the house and for his children, irrespective of the presence of the wife. Mr Mahmood accepts that it is likely that there would have been some modest addition to his entitlement by reason of the presence of his spouse, but in weighing the economic consequences of the spouse's continuing presence, it is only the modest addition from a single man to a married man's income support allowance that is the material measure of difference. Further the wife, and not the children, was only subject to the need to meet this condition because of a two year rule added to safeguard against insubstantial marriages, that was never a factor in this case.

12

The IJ nevertheless went on to consider the application of Article 8 of the European Convention on Human Rights to this case and at paragraph 46 he did so in quite summary terms :

"There is no overall breach of human rights. The appellant can return to the Yemen with her children and /or her husband and apply from there if she wishes to re-enter."

13

He returned to the theme at paragraph 67 of his judgment where he said:

"Here the appellant and her seven children had enjoyed a family life in Yemen. They had enjoyed it with the sponsor/husband prior to 1998 when he came to the United Kingdom. They enjoyed it for seven years until she came to the United Kingdom. They had enjoyed it with each other and with the sponsor/husband in the United Kingdom sending money back. They have only had two years in which permission was granted for them to remain in the United Kingdom. Permission was always conditional and not certain. There is no illegality here, I acknowledge, but that is not the same as the claim that they have any legitimate expectancy to remain simply because they have been here. They can continue to enjoy that previous state of affairs back in Yemen. Indeed there is no bar whatsoever to the husband also going back to Yemen. They can continue contact and can visit, communicate and maintain family ties. This is not a breach which tears the family asunder. Accordingly I dismiss this appeal."

14

Insofar as this assessment was to be relied in by the Home Office as the basis for rejecting subsequent Article 8 requests, it is now apparent that there are certain problems with it. First he seems to have lumped wife and children together in terms of their permission to remain in the United Kingdom being conditional and not certain. That is not correct. The children had been granted indefinite leave to remain and, absent misconduct by them, would not be deprived of the benefits of that permission irrespective of the employment history of their sponsor father.

15

Second the reference to "no bar whatsoever" appears to be a tangential reference to an obstacle which is not insurmountable because it would be a return to the status quo, but at the time of the decision there was case-law emerging which is now clear beyond doubt that the test for engagement of Article 8 is not whether there are insurmountable...

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