R (on the Application of SM, TM and JD) v Secretary of State for the Home Department [Admin Ct]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 08 May 2013 |
| Neutral Citation | [2013] EWHC 1144 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1026/2011 |
| Date | 08 May 2013 |
[2013] EWHC 1144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holman
Case No: CO/1026/2011
Case No: CO/5374/2011
and
Ms Amanda Weston (instructed by Luqmani Thompson) for all the Claimants
Ms Samantha Broadfoot (instructed by The Treasury Solicitor) for the Defendant
Ms Joanne Rothwell (instructed by Coram Children's Legal Centre) for the Intervener
Hearing dates: 24th and 25th April 2013
The issues
These claims, which were effectively consolidated, concern the impact of section 55 of the Borders, Citizenship and Immigration Act 2009 upon the consideration by the Secretary of State for the Home Department of applications by children, made outside the scope of the Immigration Rules, for leave to remain in the United Kingdom. All the claimants applied for indefinite leave to remain (ILR). All were granted discretionary leave (DL) for a period in each case of three years. They say that if the Secretary of State had correctly applied section 55 and lawfully considered their applications she would, or at any rate might, have granted them the requested ILR. Such applications are decided by officials of the UK Border Agency by reference to a policy document and instruction entitled "Discretionary Leave". The version of that policy relevant to the present case is that issued with amendments on 27 October 2009.
As all counsel agreed towards the end of the hearing, there are essentially two issues in the case.
i) Is that policy document and instruction capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence? If not, the policy is not lawful, and the decisions under review, which were taken by reference to it, should be reconsidered.
ii) If the policy is capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence, did the actual decision maker fail to read and apply it in that compliant way? If he did, the decisions should also be reconsidered.
If, however, the policy is capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence, and if there is nothing to indicate that the actual decision maker failed to read and apply it in that compliant way, the decisions cannot be interfered with by the court (subject to irrationality).
Issue (i), illuminated perhaps by the decision making process and reasons later given in the present case, is an issue of general and widespread public importance to all applications made by or on behalf of children, outside the Immigration Rules, for leave to remain. Accordingly, Coram Children's Legal Centre (CCLC), which specialises in law and policy affecting children and young people, applied for, and was granted, permission to intervene to make submissions on the issues of law and policy which arise in this case.
I am immensely grateful to each of Ms Amanda Weston, Ms Samantha Broadfoot, and Ms Joanne Rothwell, who appeared respectively for the claimants, the Secretary of State, and CCLC, for their very thorough written skeleton arguments and for their sustained oral submissions, all of which displayed considerable knowledge and experience in this field. I am grateful, too, to Mr Manjit Gill QC who drafted CCLC's skeleton submissions jointly with Ms Rothwell, although he did not appear at the oral hearing. I am grateful, too, to the various solicitors and others who were patently providing considerable support and expertise to their respective counsel during the hearing.
The factual context
It is the very essence of the argument for the claimant children and by CCLC that on every application by or on behalf of a child for leave to remain the Secretary of State, by her officials, must give specific consideration to the circumstances of the individual applicant child. For the purposes of this judgment, however, and what I have to decide (which is very different from what the decision maker had to decide) I can summarise the relevant history quite briefly.
The background to the extended family concerned is Jamaica, and all the people to whom I am about to refer are citizens of, or entitled to citizenship of, Jamaica. None of them is currently British. A lady called JW, who is now aged 48, entered the UK lawfully in 2001 and was granted a visa for one year. She overstayed and has, as I understand it, remained here continuously (but until 2010, unlawfully) ever since. JW has two adult daughters, TS, who is now aged 28, and PS, who is now aged 27. TS and PS both entered the UK lawfully in 2002 with leave to remain for short periods. They, too, overstayed and remained here unlawfully until grants of discretionary leave to remain (DL) in 2010 and 2011 respectively. Whilst here, TS has given birth to three children: SM, who was born on 28 June 2003 and is now nearly 10; TM, who was born on 16 March 2007 and is now aged 6; and SS, who was born on 31 December 2011 and is now aged about 16 months. Pausing there, I mention that TM applied concurrently with her sister SM for ILR and was granted DL. In the cases of SM and TM, SM was selected as a representative claimant, but at the outset of the hearing, with the consent of the Secretary of State, I formally joined TM as a claimant without any reservice or amendment of the pleadings. The issues in relation to TM are (in the context of this judicial review) identical. I have not, however, joined the third child, SS as there has never yet been an application on his behalf for leave to remain and so there is no reviewable decision.
PS has two children, SR, who was born on 14 July 2002 and is now aged 10; and DB, who was born on 26 June 2006 and is now aged 6. The mother of TS and PS, namely JW, has herself had another child, JD, who was born on 8 February 2005 and is now aged 8.
The claimant children are SM, TM, SR, DB, and JD. Their ages range (now) between 10 and 6. They are all related to each other either as siblings or as cousins (or in the case of JD as aunt/nieces/nephew). All were born in the United Kingdom at times when their respective mother was an overstayer. All have lived continuously in the UK. There are also other members of the extended family living here, namely brothers of JW and some of their also young children.
The Secretary of State became aware of the claimant children and their mothers when certain claims were made by the mothers for asylum and for leave to remain. These claims were all refused by the Secretary of State who sought to remove all three mothers and their children to Jamaica. Appeals to the First Tier Tribunal by JW, and to the Upper Tribunal by TS, were allowed, in each case under Article 8 of the ECHR. The full written Determinations and Reasons of the immigration judges were of course available to the official of the UK Border Agency when he made the subsequent decisions now under review. It is sufficient to give context to this judgment to quote the following very short passages. In the case of JW, the FTT judge said "The family life that extends between all members of this family [viz the wide extended family] would be torn asunder by the removal of JD and her mother (and of TS and PS and their children)…." In the case of TS, SM and TM, the Senior Immigration Judge in the Upper Tribunal said: "The ties between the three appellants and their relatives who are settled here are particularly strong."
The Secretary of State accepted and did not seek to appeal those tribunal decisions. The Secretary of State also accepted that in the light of the tribunal decisions she could not lawfully remove PS and her children SR and DB. It is very important to emphasise that the extent of the tribunal decisions in each case was that the mothers and children could not lawfully be removed from the United Kingdom. Patently, the question whether or not a person (whether adult or child) can lawfully be removed from this country without breach of Article 8 is very different from the question whether that person (if he cannot be removed) should then be granted an initially limited or immediately indefinite leave to remain; and the latter question raises issues which were not considered at all in the tribunal hearings.
It is common ground that if a decision is made on Article 8 grounds, whether by the Secretary of State or by a tribunal on appeal, that a person cannot be removed, the Secretary of State will normally, on application to her, regularise that person's position by the grant of leave to remain.
Following the decisions of the tribunals, applications were made to the UK Border Agency for leave to remain. The applications and associated correspondence made clear that in the case of all the applicants an immediate grant of indefinite leave to remain (ILR) was being sought. In each case, however, the decision maker, Mr Mark Harrison, granted discretionary leave to remain (DL) for three years. The dates of the grants of DL were 23 September 2010 in the case of JW and 13 October 2010 in the case of her son JD; 12 November 2010 in the case of TS and her daughters SM and TM; and 18 August 2011 in the case of PS and her children SR and DB. It is those decisions on those dates (with the concomitant, if unexpressed, refusals to grant ILR on those dates) which are now the subject of these claims. Mr Harrison maintained those decisions despite...
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