R Sadowska v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WILKIE |
| Judgment Date | 15 March 2006 |
| Neutral Citation | [2006] EWHC 797 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4569/2005 |
| Date | 15 March 2006 |
[2006] EWHC 797 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Wilkie
CO/4569/2005
MR STEPHEN KNAFLER (instructed by Messrs Pierce Glynn Solicitors, 1 Trinity Street, London SE1 1DB) appeared on behalf of the CLAIMANT
MS NICOLA GREANEY (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
This is the hearing of an application by the claimant, Halina Sadowska, for judicial review of decisions of the Secretary of State for the Home Department dated 23rd June 2005 and 27th July 2005. Initially the claim was addressed solely to the earlier of those two decisions, which concerned asylum support but subsequently, by amendment, she sought to review the decision of 27th July 2005 which was to grant her leave to enter the UK on a discretionary basis until 27th July 2008. With the passage of time, the first of those decisions has ceased to apply and therefore the proceedings are entirely academic as far as that is concerned. The sole focus of this case, therefore, is the decision of 27th July 2005.
I first give a brief chronology of the salient events. The claimant is a Polish national of Roma descent. In November 1992 she arrived in the United Kingdom with her husband and four children, including Artur, who was born in 1986, and Mary, born in 1990. Her husband initially applied for asylum, unsuccessfully, and in December 1997 the claimant applied for asylum. Some four years later, before her asylum claim had been dealt with, through her solicitors, she wrote a letter dated 27th June 2001 which claimed that her right to remain should be considered in the light of Article 8 of the ECHR. In the course of advancing arguments in support of that claim, reference was made to the Home Office policy with regard to children who had spent seven years of the formative part of their lives in the UK. The defendant has never replied to that letter.
On 18th July 2002, her asylum claim was refused and appended to that decision, as a matter of routine, was a document setting out removal directions to the country of nationality. On behalf of the Secretary of State it is submitted that, although the document is not to hand, the removal direction must have been one which indicated an intention to remove at some date in the future rather than a direction to remove on a specific date. At any rate, that decision upon asylum informed the claimant of her entitlement to appeal to an adjudicator, as it then was. The appeal hearing was on 26th January 2004. The decision was dated 30th January 2004.
The issues under appeal were respectively: an appeal against refusal of leave to enter after refusal of asylum by the defendant; and, by a slightly later notice of appeal, dated 8th August 2002, a claim that her removal from the United Kingdom would breach Article 8 of the ECHR. The Adjudicator allowed the appeal but only on the second of the two grounds. He dismissed the appeal against the refusal to grant asylum status but, in paragraph 26 of his decision, he said:
"…I find that the decision appealed against would cause the United Kingdom to be in breach of the law or its obligations under the European Convention on Human Rights."
In coming to the Article 8 decision, the Adjudicator took full account of all the circumstances of the case and, in particular, of the length of time during which the claimant, and in particular her children, had been resident in the United Kingdom. Reference was made in the decision to two policies of the Secretary of State in that respect. The first was the long residence policy, under which the Adjudicator, erroneously as it turned out, indicated that they should be granted indefinite leave to remain in accordance with policy Dec/00. Reference was also made to the seven-year child concession policy, which is the focus of this particular case.
The Adjudicator having allowed the appeal, the Secretary of State then had to decide what to do. By a letter of 11th May, the Secretary of State stated he was minded to grant discretionary leave to remain, initially of three years. The claimant's solicitors responded on 13th May and indicated that the claimant had expected that she would be granted indefinite leave to remain under the Home Office amnesty exercise. This letter refers to previous correspondence concerning their claim that their client qualified for granting indefinite leave to remain. It may be that they were referring to the letter of June 2001, to which no reply had yet been received, but that was not explicitly stated to be so.
At any rate, on 27th July 2005 the Secretary of State notified the decision to grant discretionary leave to enter in accordance with the published Home Office asylum policy instruction on discretionary leave. That meant an initial period of discretionary leave of three years. There then followed further correspondence concerning that decision in which reference was made, amongst other things, to the seven-year child concession. On 8th December 2005, the Secretary of State wrote in response. In dealing with that particular policy, he said:
"The policy referred to by the adjudicator in relation to length of residence of children is DP5/96, a copy of which I attach. This policy confirms that it is a consideration to be made prior to enforcement action/removal and therefore, as the Secretary of State is not removing this applicant, as discretionary leave has been granted, it has not been considered and would not be considered.
"The decision by the adjudicator that removal would breach our obligations under the ECHR is the basis upon which a decision to grant three years' discretionary leave is made, as per the published policy as referred to above."
Consideration has to be given to two policy documents and the interrelationship between them, as well as the practice of the Secretary of State, as evidenced by various statements in a number of court cases and in the present case by Helen Anderson. The first policy document is DP5/96, "Deportation in cases where there are children with long residence". In its introduction, it says as follows:
"The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents would have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence."
The policy is then set out as follows:
"Whilst it is important that each individual case must be considered on it merits, the following are factors which may be of particular relevance."
There are then set out a series of six factors which, in addition to the seven-year basic requirement, will be taken into consideration. Paragraph 3 then says:
"When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits."
The point is made by the Secretary of State, and it is not in dispute, that...
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