R (on the application of A) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Neutral Citation | [2008] EWHC 2844 (Admin) |
| Date | 2008 |
| Court | Queen's Bench Division (Administrative Court) |
Immigration – Relevant children – Difference in treatment – Claimant child residing in UK with aunt and uncle after moving from Nigeria – Home Office policy operating presumption in favour of indefinite leave to remain being granted to ‘relevant child’ living with parent also requiring leave to remain – Claimant’s application for indefinite leave to remain being refused – Whether Secretary of State erring in holding policy not applicable to claimant – Whether difference in treatment of relevant children justified – Human Rights Act 1998, Sch 1, Pt I, arts 8, 14.
The claimant, a Nigerian citizen born in 1992, came to the United Kingdom with his mother in 1995. In 1997, she returned to Nigeria, leaving him in the care of his aunt and uncle, who were British citizens. The mother died in Nigeria and the claimant was brought up in the UK by the aunt and uncle as their son. The Secretary of State for the Home Department operated a policy, ‘DP 5/96’, pursuant to which it was presumed that where a child who had resided in the UK continuously for at least seven years (a ‘relevant child’) lived with a parent who also required leave to remain, they would not be removed and indefinite leave to remain would be granted to them except in exceptional circumstances. By contrast, a relevant child who did not live with such a parent would be entitled to leave to remain for up to three years under the Secretary of State’s policy for discretionary leave, provided that the child’s removal would be incompatible with his or her right to respect for private or family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998). Thereafter, the child’s situation would be actively reviewed and a further period of discretionary leave might be granted for up to three years. He or she would normally be eligible to apply for indefinite leave to remain only after remaining in the UK on discretionary leave for six years. On 19 July 2003, an application for indefinite leave to remain was made on the claimant’s behalf on the basis that he had lived in the UK for over seven years. On 5 September 2005, the Secretary of State refused the application on the ground that evidence had not been produced of the claimant’s residence in the UK for the previous seven years. The claimant was also informed that the Secretary of State
considered that his removal would not breach his rights under art 8 of the Convention. The following day, he was informed that the Secretary of State had decided to remove him from the UK. His appeal against that decision was allowed by the Asylum and Immigration Tribunal, which held that the claimant had by then been living in the UK for ten years and that his removal to Nigeria would involve a disproportionate interference with his private and family life which had been established in the UK. On 19 July 2006, in the light of that decision, the claimant was granted leave to remain in the UK for three years in accordance with the Secretary of State’s policy on discretionary leave. The claimant sought judicial review of that decision and a declaration that he was entitled to be granted indefinite leave to remain. He ultimately conceded that DP 5/96 could not apply to him as it only applied when an individual who required leave to remain was living with a child who had satisfied the relevant residence requirement; it was not a policy which was expressed to apply if it was only that child who required leave to remain. He submitted, however, that there was no justification for the difference in treatment afforded to relevant children living with a parent who also required leave to remain and relevant children not living with such a parent.
Held – (1) DP 5/96 was a policy which fell within the ambit of art 8 of the Convention; it was a means by which the Secretary of State gave respect not only to any family life which the relevant child living with a parent who also required leave to remain might have in the UK with that parent, but also to the private life which the child had established in the UK. The claimant in the instant case and a child who might receive indefinite leave to remain under DP 5/96 were in an analogous situation insofar as both had resided in the UK continuously for at least seven years and were not to be removed. The difference in their treatment depended on whether such a child was living with a parent who also required leave to remain. It was therefore on the ground of ‘other status’, or a personal characteristic, and required justification under art 14 of the Convention; AL (Serbia) v Secretary of State for the Home Dept, R (on the application of Rudi) v Secretary of State for the Home Dept [2008] 4 All ER 1127 and R (on the application of RJM (FC)) v Secretary of State for Work and Pensions [2008] 3 WLR 1023 considered.
(2) Applying a general presumption that indefinite leave to remain would be granted to relevant children when they lived with a parent who also required leave but not applying it to those relevant children who did not live with such a parent had no justification. The difference in treatment appeared to be simply arbitrary when regard was had to the aim of DP 5/96, which was to protect the interests of a child who had, over a significant period of time at a formative age, put down roots in the UK from which (other than in an exceptional case) he or she should not be uprooted. Such considerations were equally applicable to all relevant children, whether or not they were living with a parent who required leave to remain in the UK.
By failing to approach the decision in the instant case on the basis of a presumption that the claimant should receive indefinite leave to remain given the period for which he had continuously resided in the UK and his age upon arrival, the Secretary of State had discriminated unlawfully and unreasonably against him on the basis that he had not been living with a parent who also required leave to remain. It followed that the decision fell to be quashed. However, since the starting point which the Secretary of State should have adopted was only a presumption, it remained for her to consider whether the claimant’s case was an exceptional one in which departure from that presumption might be justified. Accordingly, the claim for a declaration that the claimant was entitled to indefinite leave to remain would be dismissed.
Cases referred to in judgmentAL (Serbia) v Secretary of State for the Home Dept, R (on the application of Rudi) v Secretary of State for the Home Dept[2008] UKHL 42, [2008] 4 All ER 1127, [2008] 1 WLR 1434.
Baig v Secretary of State for the Home Dept[2005] EWCA Civ 1246.
Kadi v the Secretary of State for the Home Dept [2001] EWHC Admin 375.
NF (Ghana) v Secretary of State for the Home Dept[2008] EWCA Civ 906, [2008] All ER (D) 409 (Jul).
R (on the application of Dabrowski) v Secretary of State for the Home Dept[2003] EWCA Civ 580, [2003] All ER (D) 101 (Apr).
R (on the application of MR) v Secretary of State for the Home Dept, R (on the application of TI) v Secretary of State for the Home Dept[2007] EWCA Civ 1326, [2007] All ER (D) 218 (Dec).
R (on the application of RJM (FC)) v Secretary of State for Work and Pensions[2008] UKHL 63, [2008] 3 WLR 1023.
R (on the application of Sadowska) v Secretary of State for the Home Dept [2006] EWHC 797 (Admin), [2006] All ER (D) 207 (Mar).
R (on the application of Tozlukaya) v Secretary of State for the Home Dept[2006] EWCA Civ 379, [2006] All ER (D) 155 (Apr).
Stec v UK (2006) 20 BHRC 348, ECt HR.
Uner v Netherlands[2006] 3 FCR 340, ECt HR.
ApplicationThe claimant applied for judicial review of the Secretary of State for the Home Department’s decision on 19 July 2006 to grant him leave to remain in the United Kingdom for three years in accordance with her policy on discretionary leave, rather than indefinite leave to remain in accordance with another policy, DP 5/96. Permission was granted by McCombe J on 15 June 2007. The facts are set out in the judgment.
David Chirico (instructed by Glazer Delmar) for the claimant.
Parishil Patel (instructed by the Treasury Solicitor) for the Secretary of State.
.
JOHN HOWELL QC.[1] This is a claim for judicial review of a decision taken by the Secretary of State for the Home Department that the claimant should be granted leave to remain in this country for only three years. Permission to make this claim was granted by McCombe J on 15 June 2007.
Introduction[2] The claim raises issues about the legality, and the reasonableness, of the difference in the treatment accorded by the Secretary of State to children, requiring leave to remain in this country, who were born or who came here at an early age, once they have resided in this country continuously for seven years or more and are not to be removed (‘relevant children’).
[3] Where a relevant child is living with a parent who also requires leave to remain, the Secretary of State’s policy is to start from a presumption that it is only in exceptional cases that indefinite leave to remain (ILR) will not be granted both for the child and the parent.
[4] If removal of a relevant child (who is not living with a parent requiring leave to remain) would be incompatible with that child’s right to respect for his or her private or family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998), such a child is entitled to leave to remain for no more than three years under the Secretary of State’s policy for discretionary leave. After that period has expired that individual’s situation will be actively reviewed and a further period of discretionary leave for up to three years may be granted. Such an individual is normally eligible to apply for ILR only after he or she has remained in this country on discretionary leave...
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