R Roseline Akhalu v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Kenneth Parker |
| Judgment Date | 15 May 2014 |
| Neutral Citation | [2014] EWHC 1505 (Admin) |
| Docket Number | Case No: CO/16763/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 May 2014 |
[2014] EWHC 1505 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Kenneth Parker
Case No: CO/16763/2013
Ronan Toal (instructed by Public Interest Lawyers) for the Claimant
John-Paul Waite (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 8 th and 9 th April 2014
Introduction
The claimant, Roseline Akhalu, is a national of Nigeria. She lived alone in that country after being widowed in 1999. In 2004 the claimant was granted leave to enter the UK as a student. In 2005 she was diagnosed with end stage kidney failure and became dependent upon medical treatment for that condition. On 20 September 2012 the defendant, the Secretary of State for the Home Department, refused the claimant's application for further leave to remain. Removal directions were set. The claimant appealed. The First Tier Tribunal held that her circumstances did not fall within any of the provisions of the Immigration Rules. It held, however, that there were exceptional circumstances in her favour which meant that removal would infringe her rights under Article 8 of the ECHR. The decision reflected the fact that the treatment upon which the claimant depended would not be currently available to her in Nigeria and that she would die within a short time if she were to return to that country. The defendant's appeal against the determination of the First Tier Tribunal was dismissed by the Upper Tribunal on 24 July 2013.
On 6 August 2013 the claimant was granted leave to remain in the UK for a period of 30 months and was prohibited from accessing public funds. The defendant later agreed to remove the prohibition.
Permission to apply for judicial review was granted at an oral hearing by Mr Justice Dingemans on 9 December 2013. The issue in this claim is whether the defendant was entitled to impose a limitation on the period of leave which she granted to the claimant.
The Applicable Legislation
Section 3 of the Immigration Act 1971 : provides, so far as is relevant, as follows:
General provisions for regulation and control.
3(1) Except as otherwise provided by or under this Act, where a person is not [a British citizen ]—
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with [the provisions of, or made under, ] this Act;
(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;
[(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—
(i) a condition restricting his employment or occupation in the United Kingdom;
[( ia) a condition restricting his studies in the United Kingdom; ]
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; …
(iii) a condition requiring him to register with the police;
[(iv) a condition requiring him to report to an immigration officer or the Secretary of State; and
(v) a condition about residence ].]
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him 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 required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
There are now express immigration rules that deal with claims to remain in the UK by reason of family or private life. They are contained in paragraphs 276 ADE to 276 DH of the rules. The immigration rules, however, cannot cover and provide for every conceivable case in which the Secretary of State may be found to be subject to an obligation under Article 8 to allow a foreign national to remain in the UK. But there is full coverage of an individual's rights under Article 8 by a combination of the new rules and (so far as may be necessary) under the Secretary of State's residual discretion to grant leave to remain outside the rules. Consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain.
The Decision and Appeal
The claimant did not fall within the terms of the immigration rules. They make no provision for Article 8 private life grounds on medical factors. The claimant's entitlement to leave fell to be determined outside the scope of the rules under the Secretary of State's residual discretion. In the first instance the Secretary of State, purporting to exercise that discretion in accordance with the requirements of Article 8, refused to allow the claimant leave to remain in the UK. However, on appeal both the First Tier and Upper Tier Tribunal held that she had failed to respect the claimant's rights under Article 8 and set aside the initial decision. The Secretary of State accepted the determination of the appellate tribunals, and duly granted the claimant leave to remain in the UK. In one sense it was fortuitous that the grant of leave to remain followed the appellate determinations. If the Secretary of State had in the first instance properly directed herself as to the application of Article 8 to the claimant's exceptional circumstances, she would have granted leave to remain immediately, and the grant of leave would have been by an exercise of discretion outside the immigration rules.
Policy on Duration of Leave
Where the Secretary of State grants leave to remain outside the immigration rules (recognizing, for example a compelling Article 8 claim to private or family life), she applies policy guidance as to the duration of any such leave. The terms of the present policy are as follows:
"4 Duration of grants of Discretionary Leave
The duration of Discretionary Leave granted will be determined by a consideration of the individual facts of the case but leave should not normally be granted for more than thirty months (2.5 years) at a time.
Subsequent periods of leave can be granted providing the applicant continues to meet the relevant criteria.
From 9 July 2012 an applicant normally needs to complete at least 120 months, (i.e a total of ten years normally consisting of four 2.5 year periods of leave), before being eligible to apply for settlement. Separate arrangements exist for cases granted 3 years DL prior to 9 July 2012. See Transitional Arrangements below……
4.3 Non standard grant periods: Shorter periods of stay or deferral of decision or removal
There may be some cases where it is clear from the individual circumstances of the case that the factors leading to DL being granted are going to be short lived.
In such cases it may be appropriate to grant shorter periods of leave. Non-standard grants of a shorter of a shorter than standard leave period should be used only where the information relating to the specific case clearly points to a shorter period being applicable. Reasons for granting a shorter period must be included in the letter to the applicant.
There will also be some cases where the factors meriting a grant of DL are expected to be significantly short lived that the question arises whether to grant a short period of leave or to refuse the application outright whilst giving an undertaking not to remove the individual or to expect them to return until the circumstances preventing their return have changed. Such cases could arise at the decision-making stage or following an appeal.
Where it is considered that return would be possible within six month of the date of decision it will normally be appropriate to refuse the claim outright, not to grant a period of DL, and to defer any removal until such time as it is possible.
4.4 Non-standard grant periods: Longer periods of stay
There may be cases where a longer period of leave is considered appropriate either because it is clearly in the best interests of a child, (and any countervailing considerations do not outweigh those interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period or (ILR).
In cases not involving children (as the direct applicant or dependents), there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of DL under this policy….." (emphasis added)
There is further specific guidance where a grant of leave is necessary on medical grounds. The guidance ("Human Rights Claims on Medical Grounds") states as follows:
"This page tells you how to grant applications for permission to stay in the UK on human rights (medical grounds)
If you decide an application meets the requirements for permission to...
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Ms For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
...life would be prejudiced by his being returned to Pakistan. She argued with reference to the case of Akhalu v Secretary of State [2014] EWHC 1505 (Admin) UKUT 400 that private life extends to physical and moral integrity and includes a person’s ability to function as a social being. That ca......