R (on the application of Britcits) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 20 April 2016 |
| Neutral Citation | [2016] EWHC 956 (Admin) |
| Date | 20 April 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3763/2015 |
2016 EWHC 956 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/3763/2015
Ms N Lieven QC and Mr D Seddon (instructed by Migrants' Law Project) appeared on behalf of the Claimant
Mr N Sheldon (instructed by the Government Legal Department) appeared on behalf of the Defendant
Section 1(4) of the Immigration Act 1971 provides:
"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
It is the source of the power of the Secretary of State for the Home Department to make Immigration Rules: Lord Dyson in R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192 at paragraph 27.
Until 9 July 2012, the entry of parents, grandparents and other adult dependants of persons lawfully in the United Kingdom was governed by Rule 317 of the Immigration Rules laid before Parliament on 23 May 1994. It identified the categories of persons potentially eligible; broadly speaking, parents and grandparents aged 65 or older and younger adults "in the most exceptional compassionate circumstances" who were mainly dependent financially on relatives settled in the United Kingdom. In addition parents and grandparents aged 65 or over had to have no other close relative in their own country to whom they could turn for financial support. The rule also required that the adult dependent relative would be maintained without recourse to public funds in the United Kingdom.
In the last year for which figures are available before July 2012, the years 2010 to 2011, 2,325 adult dependants were granted indefinite leave to enter (969), or indefinite leave to remain (1,356): see paragraph 5.2 of appendix 5 to the Home Office Policy Equality Statement supporting the change in the Immigration Rules, dated 13 June 2012.
A Home Office impact assessment for 2010 published in July 2012 contains slightly different figures: 2,665 grants of indefinite leave to enter or remain in 4,120 decisions. The applications received in the same year but not necessarily decided totalled 3,390.
As from 9 July 2012, the right to apply for indefinite leave to remain, in other words a right which could be exercised in country, has been abolished. The right to apply for indefinite leave to enter is now contained in section E-ECDR 2.1 to 2.5 of Appendix FM to the new rules. They provide:
"E-ECDR.2.1. The applicant must be the-
(a) parent aged 18 years or over;
(b) grandparent;
(c) brother or sister aged 18 years or over; or
(d) son or daughter aged 18 years or over,
of a person ('the sponsor') who is in the UK.
…
E-ECDR.2.3. The sponsor must at the date of application be—
(a) aged 18 years or over; and
(b)
(i) a British Citizen in the UK; or
(ii) present and settled in the UK; or
(iii) in the UK with refugee leave or humanitarian protection.
E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because—
(a) it is not available and there is no person in that country who can reasonably provide it;
or;
(b) it is not affordable."
This case concerns sponsors who are British citizens and one or more parents who reside abroad and are, at least to some extent, financially dependent on their British citizen sponsor. Sections E-ECDR 3.1 and 3.2 contain financial requirements that the applicant will be adequately maintained and accommodated by the sponsor without recourse to public funds and that a British citizen sponsor will provide a written undertaking to that effect good for five years.
The claimants are a United Kingdom charity set up to represent the interests of sponsors and applicants affected by the "Adult Dependent Relative" sections of the new rules and to campaign to revoke or alter them. Their case is that sections E-ECDR 2.4 and 2.5 are unlawful on one or all of three overlapping grounds: (1) they are outwith the rule-making power in section 1.4 of the 1971 Act; (2) they are arbitrary and unreasonable; (3) they are incompatible with Article 8 of the European Convention on Human Rights. Declarations to that effect and an order quashing the relevant sections are sought, in the case of the third ground under section 8(1) of the Human Rights Act 1998.
The new Immigration Rules were the subject of the negative resolution procedure required by section 3(2) of the 1971 Act. There was no dissent in either House of Parliament. The procedure for bringing rules into force was therefore properly applied.
Parliamentary consideration was preceded by widespread consultation by the Home Office and by a Home Office Statement of Intent of 11 June 2012 and an Equality Statement and an Impact Assessment, to which I have already referred. The Statement of Intent made the Secretary of State's intent in relation to adult dependent relatives plain:
"Adult Dependent Relatives.
118. The new Immigration Rules will change the basis on which non-EEA adult dependent relatives can settle in the UK, in view of the significant NHS and social care costs to which these cases can give rise.
…
121. We will end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here. Non-EEA adult dependent relatives will only be able to settle in the UK if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.
122. In particular, this will mean:
• The applicant must, as a result of age, illness or disability, require long-term personal care: that is help performing everyday tasks, e.g. washing, dressing and cooking;
• The applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable there.
• The entry clearance officer must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds."
The intent of the changes, including but not limited to the sections under challenge, was set out by the Secretary of State in her introduction to the consultation document issued in July 2011:
"…stopping abuse, promoting integration and reducing the burden on the taxpayer."
As Clive Peckover, the senior civil servant responsible for the development and delivery of the policy encapsulated in the new rules, says in his witness statement:
"Primary consideration was given to the impact of the new rules on the taxpayer and, in particular, on the burden imposed on the taxpayer by the NHS. A reduction in numbers would be welcome, but was not one of the primary objectives. They were to reduce the burden, in particular the financial burden, on the NHS and on local authorities of caring for elderly adults. The former was quantified in an impact assessment. No attempt has been made to estimate the latter."
The saving of NHS costs is put in section 2.4 of the Impact Assessment at £23 million over 10 years. No estimate of the reduction in the number of successful applicants is stated in the Impact Assessment, but, in response to questions posed by the claimants in pre-hearing correspondence, the Secretary of State has stated that it was based on the anticipation that there would be an annual reduction of 281 grants of indefinite leave to enter as a result of the rule change.
It is far from clear to me how the arithmetic works, given that the estimated cost to the NHS over the remaining life of an adult aged 65 is said to be £75,000, which would suggest a total reduction in the number of grants of indefinite leave to enter over 10 years substantially fewer than the figure implied by the annual total multiplied by 10: 2,810.
The saving is in part increased by a saving of administrative costs and an increase in processing fees said to be of £12 million in total. It is offset by an increase in administrative costs and a loss in processing fees totalling £25 million. The net saving over 10 years was therefore estimated at £10 million. That saving was, however, based on certain assumptions: that 50 per cent of out-of-country applications for indefinite leave to enter would fail and that 25 per cent of those aged 65 years or older and 50 per cent of those aged 18 to 65 who would have...
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