R NS, ZS, ZS, SS and NS v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 20 June 2014 |
| Neutral Citation | [2014] EWHC 1971 (Admin) |
| Docket Number | Case No: CO/12089/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 June 2014 |
[2014] EWHC 1971 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Kenneth Parker
Case No: CO/12089/2013
Amanda Weston (instructed by Duncan Lewis Solicitors) for the Claimants
Ben Lask and Rob Harland (instructed by The Treasury Solictor ) for the Defendant
Hearing dates: 8–9 April 2014
Introduction
The first Claimant ("C1") is a national of Thailand. She entered the UK in February 2003 using a false passport and thereafter remained in the UK. She formed a relationship with, and subsequently married, a British citizen, with whom she had four children, now aged, respectively, 8, 7, 5 and 4. The children are British citizens and are also Claimants in these proceedings. Following the incidence of domestic violence C1 in 2011 ended her relationship with the children's father.
C1 sought to regularise her immigration status. C1 applied for leave to remain on 7 November 2012.
C1's application did not state that she required recourse to public funds. C1 was not in receipt of public funds when she made the application in November 2012. Nor was she permitted to work. It appears that she was solely responsible for caring for all four of her British children on a daily basis. The evidence submitted by C1 in support of her application did not suggest that the Claimants were destitute or that there were any particular concerns relating to the welfare of C1's children. There was nothing in C1's application to suggest that the means by which she then supported her children would become unavailable to her once her application was granted.
The Defendant to this claim, the Secretary of State for the Home Department, on 30 May 2013 granted C1 leave to remain ("LTR"). A condition of leave was that C1 should not have recourse to public funds ("NRPF")
The Claimants challenged this decision by a claim filed on 29 August 2013. They challenged at that time only the decision to prohibit C1 from having any access to public funds.
By letters dated 11 October and 28 November 2013 the Defendant offered to reconsider her decision on receipt of further evidence as to the Claimants' circumstances. The Claimants did not submit any further evidence. They did not seek the removal of the NRPF condition under the January 2014 Guidance. (referred to in 26 paragraph below).
However, the Defendant issued a supplementary decision on 7 March 2014, in which she considered the representations made in C1's claim ("the further decision"). The Defendant also considered the submission, raised in the course of the claim, that C1 ought to have been granted indefinite leave to remain ("ILR") instead of LTR. The Defendant decided that, on the evidence, C1 was not destitute nor were there particularly compelling reasons relating to the welfare of her children. C1 had not demonstrated that a departure from the normal policy of granting LTR for 30 months was appropriate.
Since the decision of 30 May 2013 there has been further policy guidance, and the further decision of 7 March 2014 refers to, and relies on, that guidance. It appears to me that I would do no service to any party if I were to scrutinise the earlier decision of 30 May 2013. I believe that I should focus on the further decision of 7 March 2014, taking account of the appropriate legislation and policy guidance at the time of that decision.
The Claim
The Claimants submit that the Defendant acted unlawfully in that (a) she granted to C1 LTR for a period of 30 months rather than ILR; and (b) prohibited C1 from having recourse to public funds.
The Applicable Legislation and Policy Guidance: Limited Leave to Remain and Indefinite Leave to Remain
The power of the Defendant to grant a person leave to remain in the UK is contained in section 3(1)(b) of the Immigration Act 1971 (" IA 1971")
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen…(b) he may be given leave to enter the United Kingdom (or when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period"
The Immigration Rules, made under section 1(4) of the IA 1971, are a detailed statement of how the Defendant intends to exercise her powers of control over immigration: see R(Odelola) v SSHD [2009] 1 WLR 1230, paragraphs 6 and 7.
D-LTRPT 1.1 provides for a 5-year route to settlement on the basis of family life as a parent (with sole or shared responsibility for or access rights to a child in the UK), where additional conditions are satisfied. Leave granted under this 5-year route to settlement is invariably made subject to a condition that the person granted leave should not have access to public funds. That follows logically from one of the requirements of D-LTRPT 1.1 that "the applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependents in the UK without recourse to pubic funds".
It is plain that C1 did not qualify under D-LTRPT 1.1. Her application fell to be considered under D-LTRPT 1.2 which provides:
"D-LTRPT 1.2. If the applicant meets the requirements in paragraph LTRPT 1.1 (a),(b) and (d) for limited leave to remain as a parent they will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State deems such recourse to be appropriate, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a parent under paragraph D-LTRPT 1.1, or in the UK with entry clearance as a parent under paragraph D-LTRPT 1.1, or in the UK with entry clearance as a parent under paragraph D-ECPT 1.1."
D-LTRPT 1.2 thus provides for a 10-year route to settlement on the basis of family life as a parent (with sole or shared responsibility for or access rights to a child in the UK). Where an applicant meets the requirements in D-LTRPT 1.1 (a),(b) and (d), she will be granted limited leave to remain for a period not exceeding 30 months. After 10 years she will be eligible to apply for indefinite leave to remain.
The requirement to complete a probationary period of LTR before being eligible to qualify for ILR is a common and ordinarily lawful feature of the IR: see R (Mohammed) v SSHD [2014] EWHC 98 (Admin), para 32. In general, an applicant will qualify for ILR only if, at the end of the probationary period, she continues to satisfy the IR. The satisfactory completion of the probationary period is the means by which the applicant establishes that she is a person to whom it is appropriate to grant settlement.
The Defendant retains a discretion under s.3(1) IA 1971 to grant leave outside the IR, whether for a limited or indefinite period. The Defendant may exercise that discretion where an applicant does not satisfy the IR, or where the applicant qualifies for LTR under the IR but it is, in the particular circumstances of the case, appropriate to grant the applicant ILR: R (SM) v SSHD [2013] EWHC 1144 [15] [24].
Guidance as to how caseworkers should exercise that discretion is, so far as is material, contained in a document entitled 'Guidance on consideration of a child's best interests under the family and private life rules and in Article 8 claims where the criminality thresholds in paragraph 398 rules do not apply' (January 2014) ("the Children's Best Interest Guidance").
The Children's Best Interest Guidance provides at §28:
"There is also discretion to grant a longer period of leave where appropriate. There may be cases where a longer period of leave outside the rules is considered appropriate, either because it is clearly in the best interest of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant limited leave for a longer period or to grant Indefinite Leave to Remain (ILR). The onus is on the applicant to establish that the child's best interests would not be met by a grant of 30 months leave to remain and that there are compelling reasons that require a different period of leave to be granted." (emphasis added).
The decision to grant limited leave to remain rather than indefinite leave to remain has recently been considered by Lewis J in R (Mohammed) v SSHD [2014] EWHC 98 (Admin) and Mrs Justice Andrews in R (Omokayode) v SSHD [2014] EWHC 594 (Admin). At paragraph 7 of Omokayode, the court reviewed Mohammed and noted:
"7. In dealing with the submission that the policy was applied in an unfair and unlawful manner and failed to take into account the circumstances of the claimant, his family and his child, because there were no factors militating against a grant of indefinite leave and there were additional compassionate family and child circumstances militating in favour of granting ILR Lewis J. said:
'That submission reads as if the Defendant is in someway obliged to grant indefinite leave to remain unless there are positive reasons for refusing it. In fact, that is not the position. The Defendant is entitled to adopt a policy whereby those who do not have to remain in the United Kingdom may be granted discretionary leave to remain because of the particular circumstances of the individual or his family. The Defendant is also entitled to adopt a policy whereby an...
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