R (on the application of Halimatu SA Adiya Damilola Aliyu and Fatima Oluwakemi Aliyu) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge A Grubb |
| Judgment Date | 26 November 2014 |
| Neutral Citation | [2014] EWHC 3919 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2014 |
| Docket Number | Case No: CO/5427/2013 |
[2014] EWHC 3919 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Judge A Grubb
(Sitting as a Deputy High Court Judge)
Case No: CO/5427/2013
Mr Zane Malik and Mr Darryl Balroop (instructed by Chipatiso Associates LLP) for the Claimants
Miss C Rowlands (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 2 October 2014
Introduction
The first claimant ("C1") and second claimant ("C2") are citizens of Nigeria who were born respectively on 23 September 1992 and 6 October 1993. They are sisters and are now aged 22 and 21 years old respectively.
The claimants entered the United Kingdom on 20 January 2004 with visit visas and leave valid until 15 July 2004. Thereafter, the claimants overstayed.
The purpose of the visit was purportedly to see their grandmother in the UK where she lives and is a British citizen. However, it would appear that in truth they came to join their maternal aunt, a British citizen in the UK, with the agreement of the father, after their mother died in Nigeria in December 2003. They have lived with their aunt, her 3 children and their grandmother since arriving in the UK. It is also said, although not specified, that they have other family members in the UK. The claimants have attended school. It would appear that both claimants have obtained GSCEs and A levels and both have been offered places at the University of Portsmouth to study pharmacy and psychology respectively. It is not clear from the evidence whether either claimant has actually taken up the offer of a place.
On 22 June 2012, the claimants submitted separate FLR(O) applications for discretionary leave on the basis of their private and family life in the UK.
On 7 February 2013, the Secretary of State refused C1 leave to remain. On 28 March 2013, the Secretary of State refused C2 leave to remain.
On 1 March 2013 and 15 April 2013, the claimants' legal representatives sent pre-action protocol letters to the Secretary of State in respect of C1 and C2 respectively in which it was argued that the Secretary of State's decisions failed properly to consider the claimants' rights to remain under Article 8 of the ECHR and requesting the Secretary of State to make an appealable removal decision against each of the claimants.
On 7 May 2013, the claimants issued these proceedings contending that the Secretary of State had acted unlawfully in failing properly to consider their rights under Article 8 of the ECHR and in failing to issue appealable immigration decisions.
On 17 October 2013, permission was granted by Lang J.
The Respondent's Decisions
The separate decision letters in respect of each claimant are brief.
C1: 7 February 2013
The basis of the Secretary of State's refusal in relation to C1 was, in summary, as follows. First, the Secretary of State concluded that the "family life" which C1 claimed with her "family and friends" in the UK did not constitute family life under Appendix FM of the Immigration Rules ( Statement of Changes in Immigration Rules, HC 395 as amended). Secondly, as a consequence, the Secretary of State went on to consider C1's claim based on her "private life" in accordance with para 276ADE of the Immigration Rules. Having set out the requirements of the rule, the Secretary of State concluded that C1 could not succeed under para 276ADE(iii) as she had only been resident in the UK for nine years and not, as required, for at least twenty continuous years. Further, in relation to para 276ADE(vi), the Secretary of State concluded that C1 had not established she had "no ties" with Nigeria. The refusal letter states as follows:
"Furthermore I note that you entered the United Kingdom at the age of 11 and you are now 20 years of age. I am therefore satisfied that you have lived a large proportion of your life in Nigeria and as you can return to Nigeria with your sister and by the fact that your father is in Nigeria you have failed to demonstrate that you have no ties (including social, cultural or family) with Nigeria and therefore do not meet the requirements of paragraph 276ADE(iii) (vi)."
The decision letter itself makes no reference to a consideration of whether C1's circumstances justify a grant of leave on an exceptional basis outside the Rules. However, the covering letter does state:
"Your client's case has been considered on an exceptional basis. You have made submissions that your client wishes to remain in the United Kingdom due to her having a family and private life here. Whilst it is acknowledged that your client wishes to remain in the United Kingdom this does not give your client the right to do so on an exceptional basis."
C2: 28 March 2013
C2's decision letter is even more briefly expressed. In respect of C2, the Secretary of State first concluded that the "family life" that C2 claimed with her relatives in the UK did not constitute family life for the purposes of Appendix FM and that her application would therefore be considered on the basis of her "private life" only under para 276ADE. Secondly, the Secretary of State set out the relevant requirements of para 276ADE. Thirdly, having noted that C2 entered the UK on 20 January 2004 aged 10, (and thus by implication could not show 20 years continuous residence), the Secretary of State concluded that she could not show under para 276ADE(vi) that she had "no social or cultural ties" to her home country.
The decision letter again makes no reference to a consideration of whether C2's circumstances justify a grant of leave outside the Rules on an exceptional basis. Unlike with C1, no reference is made to exceptional circumstances in the covering letter sent with the decision letter.
The Issues
In his oral submissions, Mr Zane Malik, who represented the claimants, did not pursue their challenge on the basis that the Secretary of State had acted unlawfully by failing to make an appealable immigration decision. That was undoubtedly a sound approach in the light of the authorities that the Respondent does not have an obligation (but only a discretion) to make an appealable removal decision when refusing leave to remain (see R (Daley-Murdock) v SSHD [2011] EWCA Civ 161 and Patel and others v SSHD [2013] UKSC 72). Instead, Mr Malik focused exclusively on the ground that the Secretary of State had acted unlawfully in failing properly to consider the claimants' Article 8 rights in her decisions of 7 February 2013 and 28 March 2013.
Mr Malik advanced the claimants' case on three bases:
(1) The Secretary of State acted unlawfully by refusing the claimants leave to remain by reference to the new Immigration Rules incorporated by HC 194 (the "new Rules") which came into effect on 9 July 2012 when the claimants' application for leave was made prior to that date;
(2) The Secretary of State acted unlawfully by failing to give independent consideration to Article 8;
(3) The Secretary of State acted unlawfully by failing to consider whether to exercise discretion outside the Rules under Article 8 on the basis that there were "exceptional" circumstances justifying the grant of leave.
Application of the 'New' Rules
On 9 July 2012, the Immigration Rules were amended by HC 194 (June 2012) so as to include, in particular, rules specifically dealing with claims to enter and remain in the UK based upon family relationships (Appendix FM), claims based upon private life in the UK (paras 276ADE to 276DH) and setting out the scope of the public interest and the circumstances in which it will be outweighed in a deportation case (paras 396 to 399C). Those changes were introduced in order to give effect to the government's view of the scope of Article 8 of the ECHR. The extent to which the rule has successfully enshrined, as it is put in some of the case law, a "complete code" I will return to shortly in the light of the authorities.
The Submissions
Mr Malik submitted that the new Rules had no application to the claims made by the claimants and the Secretary of State had acted unlawfully by applying them in refusing the claimants leave to remain.
Mr Malik based his submission squarely upon the decision of the Court of Appeal in Edgehill and Another v SSHD [2014] EWCA Civ 402. He submitted that the Court of Appeal had concluded that in considering applications for leave to remain outside the Rules under Article 8, where the applications were made before 9 July 2012, it was an error of law to reach that decision applying the new Rules, namely para 276ADE. Mr Malik accepted that the Court of Appeal added a proviso, namely that the reliance upon the new rule must be "material" but, he submitted, the new Rules were material consideration in the decisions made in respect of the claimants.
Mr Malik accepted that the Court of Appeal had taken a different approach in Haleemudeen v SSHD [2014] EWCA Civ 559. However, Mr Malik submitted that it was clear that the Court of Appeal in Haleemudeen had not been referred to the earlier decision in Edgehill and had not been shown the implementation provisions in HC 194 which was relied upon by the Court of Appeal in Edgehill to reach its decision. Mr Malik submitted that I should follow Edgehill, either on the basis that the decision in Haleemudeen was decided per incuriam or, alternatively, being faced with conflicting decisions of the Court of Appeal I was free to...
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