R (Suleiman) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHARLES |
| Judgment Date | 21 July 2006 |
| Neutral Citation | [2006] EWHC 2431 (Admin),[2005] EWHC 2930 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2006 |
| Docket Number | C0/1605/2005 |
[2006] EWHC 2431 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Charles
C0/1605/2005
MR R KHUBBER (instructed by Messrs F Mersdith) appeared on behalf of the CLAIMANT
MR J P WAITE AND MISS K VENTHAM (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
This review relates to a decision under DP5/96 as amended or DP069/99 ("the policy"). There have in fact been three decision letters, the first, in December 2004. The matter first came before Collins J, who refused permission to bring proceedings by way of judicial review. In his refusal, he identified that the claimant has been found to be guilty of deception and to have made false claims. He however described the decision under attack as one that is undoubtedly harsh, particularly on the children. That refusal was made on the papers and the matter was renewed. Before the matter came before the court on the renewed hearing further representations had been made, and indeed there was a further letter written by the Secretary of State. The oral hearing took place before Silber J in November 2005. He gave permission, saying that first, the presumption in the policy that children who have been here continuously for seven years will be permitted to remain was something that he thought the decision letter under challenge did not take sufficient account of; and secondly, it was arguable in his view that the disruption would be caused to the claimant's children in the light of the decision of Moses J in Jagot is also something that the decision letter did not take sufficient account of.
The decision letters before Silber J are not before me. The reason for that is, as appears from paragraph 1 of the new decision letter, the Secretary of State decided to withdraw the earlier refusal letter of 2 December 2004 and the supplementary letter of 14 November 2005 and, in the light of the grounds identified as being arguable by Silber J, reconsidered the matter and wrote a further letter dated 3 March 2006, which is the decision letter before me.
The claimant has three children. She lives at present in this country with those children and her husband, who is the father of those children. The children were born in 1990, 1994 and 1997 and are respectively 15, 11 and 8. The father came to the United Kingdom in March 1994. The mother and the eldest child came to the United Kingdom on 22 April 1994. The father made a claim for asylum and at its initial stages the mother and only the eldest child were included as his dependants. The second child was born shortly after the arrival in this country.
The eldest child by reference to the policy, to which I shall return, completed seven years in this country in April 2001. The second child did that in August 2001 and the third child did that in August 2004. As will be apparent from what I have already said, the second and third children were born in this country and have lived all their lives in this country. It will also be apparent from what I have said that the father, the mother and the eldest child have now been living here for 12 years.
The policy
I was provided with what I understand to be a version of the policy correctly set out in Butterworths. It reads as follows:
"3.1. Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:
—the length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
—the age of the children;.
—whether the children were conceived at a time when either parents had leave to remain;.
—whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;.
—whether either of the parents has a history of criminal behaviour or deception.
3.2. It is important that full reasons are given making clear that each case is considered on its individual merits."
The next port of call in considering the policy is the decision of Moses J (as he then was) in ex parte Jagot [2000] INLR 501 which was referred to by Silber J. As appears from paragraph 14 of that judgment, when the revised policy was introduced by the relevant minister it was stated:
"A child who has spent a substantial, formative part of life in the United Kingdom should not be uprooted without strong reason…"
The most relevant paragraphs of the judgment of Moses J for present purposes are paragraphs 31, 37 and 39. They read as follows:
"(31) Such recognition was to be given by accepting that after 7 years a child should not be uprooted where he spent the substantial and formative part of his life here without strong reason. Thus the approach of this court should be to ask whether, after rigorous examination of the underlying facts, the Secretary of State was bound to conclude that there was no strong reason for Mobin to be uprooted.
(37) In terms of the policy 069/99 the question is whether the uprooting of a child from an existing family life can be justified by a strong reason. The answer will not necessarily be found solely by a conclusion that Art 8 has not been breached. There is no question in the instant case but that Mobin has an effective existing family life in this country; no questions but that he has spent the substantial and formative part of his life here. The issue is whether the disruption to the applicant's present life can be justified by a strong reason.
(39) It is difficult to understand how the requirements of immigration control can play any significant part in adding to the strength of the reason for the disruption. It is inherent in policy 069/99 that there has been a breach of immigration control. Were it not so, there would be no need for this policy at all. Further, the policy contemplates that the requirements of a firm system of immigration control do not extend to the need to uproot children without strong reason. Indeed the rationale of the policy is to meet the requirements of fairness as well as firmness because, no doubt, the Secretary of State acknowledges that a system of immigration control which is unfair can never be truly effective. The policy acknowledges that the integrity of the immigration control system can be maintained even though children who have spent a substantial and formative part of their life in the UK in breach of immigration rules are permitted to stay. Once this that is accepted I cannot see how the reference to the requirements of immigration control strengthen the justification given in this case. The court is left with the fact that the Secretary of State has based his decision upon the fact that Mobin could have, in the future, an effective family life in Malawi. Accepting, as I have, that that is a rational conclusion I fail to see how it can be said to be capable of being a strong reason for disrupting or uprooting the child. The flaw in the Secretary of State's reasoning seems to me to lie in his failure to focus upon disruption and the justification for disruption. I do not accept that the Secretary of State's conclusion was within the range of reasonable responses to the question posed by the policy he had adopted, namely: whether there was strong reason to uproot this child when he had spent most of his formative life in this country. In those circumstances I shall allow the application."
I pause at this point to comment on that decision. First, as I understand it, the case was not concerned with any question of abuse or misuse of the immigration process. It was therefore not dealing with the factors as set out in the policy by reference to, for example, a particularly poor immigration history. That simply was not the balance that the Secretary of State in that case was making in his decision letter which was set aside by Moses J. What Moses J helpfully does is to explain features of the policy. What he emphasises is firstly that the policy, as it indeed expressly says, creates initially a general presumption. It follows that, in setting that policy and setting that general presumption, the Secretary of State has in general terms carried out a balancing exercise between on the one hand disruption that will generally flow from a child who has been here continuously for seven years being removed from this country, against the requirements of immigration control. And the policy demonstrates that that balance looked at in general terms...
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