R Taylor and Owusu-Akyeaw v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Stephen Morris QC,JUDGE
Judgment Date13 October 2015
Neutral Citation[2015] EWHC 3526 (Admin)
Date13 October 2015
Docket NumberCO/3345/2013

[2015] EWHC 3526 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Stephen Morris QC

(sitting as a Deputy High Court Judge)

CO/3345/2013

Between:
The Queen on the Application of Taylor and Owusu-Akyeaw
Claimants
and
Secretary of State for the Home Department
Defendant

Mr Darryl Balroop (instructed by Greenland Solicitors) appeared on behalf of the Claimants

Miss Emma Price (instructed by Government Legal Department) appeared on behalf of the Defendant

Mr Stephen Morris QC
1

The two claimants in this case seek judicial review of the decisions of the Defendant, the Secretary of State for the Home Department dated respectively 27 September 2012 and 9 October 2012 to grant each of them limited leave to remain in United Kingdom in accordance with immigration rules in force from 9 July 2012, those rules being the rules in force at the time that those decisions were taken. The first claimant is Sherika Sharon Taylor ("the first claimant"). She is a Jamaican national now aged 27. She has a daughter now aged five who is a British citizen. She entered the UK in April 2001 on a visitor's visa and overstayed. Prior to the present application she had had previous appeals and asylum applications refused.

2

The second claimant is Abigail Owusu Akyeaw ("the second claimant"). She is a national of Ghana and now aged 37. She has a son now age five who is a British citizen. She claims to have entered the UK in 1996. Prior to the present application she had made an application as the dependent of an EEA national. That application was refused in January 2009.

3

Each claimant applied for discretionary leave to remain outside the immigration rules in pursuant to section 55 of the Borders Citizenship and Immigration Act 2008 and Article 8 of the ECHR. The first claimant applied on 30 March 2011 and the second claimant applied on the 5 March 2012. Each claimant complains that she should have been granted leave on more favourable terms in accordance with the rules in force at the earlier time when her application for leave to remain was made.

4

Turning to the terms of the decision letters in each case. In the case of the first claimant by a decision letter dated 9 October 2012, the first claimant was granted limited leave. The letter provided inter alia as follows:

5

"As a result of the changes to the immigration rules which came into effect on 9 July 2012, any family life claim will now be given consideration under Appendix FM. Consideration has been given under the exceptions paragraphs EX.1(a) and EX.1(b). We are satisfied from the information you have provided that you are the parents and main carer of a British citizen child who is resident in UK. We are also satisfied that this child enjoys contact with her father who holds separate status in the United Kingdom. Because of your particular circumstances, you have been granted leave within the immigration rules under D-LTRP.1.2 of Appendix FM. We have endorsed your passport with limited leave to remain in the United Kingdom initially for 30 months.

6

In order to qualify for settlement, you must have completed a continuous period of at least 120 months in the UK on with limited leave granted because of your family life as a parent of a child in the United Kingdom.….

7

Future Applications

8

If your circumstances remain the same, following a continuous period of lawful leave to remain in the UK for 10 years and subject to meeting the requirements of the immigration rules at the time, you may apply for indefinite leave to remain in the UK".

9

As far as the second claimant is concerned, she received a decision letter in very similar terms dated 27 September 2012. I read only the following passage, (the first part of the letter being essentially the same as the letter of 9 October 2012).

10

"We have endorsed your biometric residence permit with limited leave to remain in United Kingdom initially for 30 months. In order to qualify for settlement, you must have completed a continuous period of at least 120 months in the United Kingdom on with limited leave granted because of your family life as a parent of a child in the United Kingdom"

11

and then the letter continues and contains the same provision about future application as contained in the letter to the first claimant.

12

Each application was made before the 9 July at a time when other more favourable rules were in force. The claimants claim they should have been granted leave in accordance with those rules and had they been so granted, they would have been granted discretionary leave for 36 (rather than 30 months) and would have qualified for indefinite leave to remain within 72 months (rather than 120 months).

13

By the time that their application was decided, the new rules were in force and so they were granted limited leave in the terms I have just described.

The Grounds of Challenge

14

There are two grounds of challenge. In summary the claimants contend, first, that the Secretary of State should not have applied the rules in force after 9 July 2012 to the claimants' applications but rather the rules in force before 9 July and, had she done so, as I have explained she would have granted leave on more favourable terms.

15

Secondly, alternatively, and in the case of first claimant alone, following the Defendant's excessive delay in processing her application, the policy granting discretionary leave was withdrawn. That delay rendered it unfair for the Defendant not to have applied the withdrawn rules to the first claimant.

16

The relief sought by the claim is an order quashing the decisions and for orders to be substituted granting 3 years discretionary leave to remain in line with the rules as at 8 July 2012.

17

I describe in more detail below the factual history in relation to the first claimant's application when I deal with the second ground for review.

18

As far as the procedural history is concerned, on 23 April 2014 permission was granted on the papers on the basis of the then very recent Court of Appeal decision in the case of Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402.

19

On 12 February this year the Court of Appeal handed down judgment in the subsequent case of Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 not following Edgehill on the basis that the latter case had not considered a further change in the rules. On 4 March this year the present case was stayed to await the outcome of then pending petition for permission to appeal to the Supreme Court in the Singh case. On 31 March 2015 the claimant filed amended grounds raising the second ground of challenge which I have just described. On 12 May 2015 the Defendant filed detailed grounds of defence. Significantly on 20 May this year the Supreme Court refused permission to appeal in the Singh case.

The Rules

20

I turn first to the relevant immigration rules and policy. They are conveniently summarised and then set out by Lord Justice Underhill in the Singh case. Adopting Lord Justice Underhill's description, I refer to the rules before 9 July as the Old Rules and to the rules taking effect from 9 July 2012 as the New Rules. What follows is a brief summary. As for the Old Rules, the background is explained at paragraphs 2 and 6 of Lord Justice Underhill's judgment where he stated:

21

"As under the old Rules leave to enter or remain as a family member of a person settled in the UK was regulated by Part 8, which is entitled "Family Members." There was no recognition of a right to enter or remain on grounds of private life as such, but Part 7 ("Other Categories") did provide for leave to remain on grounds of long residence. If an applicant could not establish a right to remain on the basis of one of the particular provisions in those parts, which were tightly defined, they could seek to rely on the right to respect for private family life4 derived, via the Human Rights Act 1998, from Article 8 of the European Convention of Human Rights. Such applications were generally referred to as being made "outside the Rules….

22

As already noted, Part 8 covers family members. I need not refer to the details of its provisions prior to HC 194 coming into effect. Part 7 had a sub-heading "Long Residence," which comprised paragraphs 276A-276D. I need only note paragraph 276B, which set out the requirements for the grant of indefinite leave to remain on the ground of long residence in the UK. These included, at (i), that the applicant should have had either (a) ten years' continuous lawful residence or (b) fourteen years' continuous residence (i.e. residence which was not — or not all — lawful); but residence did not count towards the fourteen-year period if the applicant had been served with notice of liability to removal."

23

As far as material in the present case, the effect of the discretionary policy under the Old Rules was as follows:

"Standard Period for Different Categories of Discretionary Leave

It will normally be appropriate to grant the following periods of discretionary leave to those qualifying under the categories set out above. All categories will need to complete at least 6 years in total or at least 10 years in excluded cases before being eligible to apply for ILR, Article 8 cases 3 years.

Applications for Settlement

A person will normally become eligible for consideration for settlement after completing six continuous years of discretionary leave."

24

On 9 July 2012 the Defendant brought in new rules pursuant to Statement of Changes HC 194 (June 2012). Those...

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2 cases
  • Upper Tribunal (Immigration and asylum chamber), 2018-06-05, IA/29051/2012
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 5 June 2018
    ...also confirmed in R (on the application of Rajibul Islam) [2015] EWCA Civ 312. In R (on the application of Taylor and Owusu-Akyeaw) [2015] EWHC 3526 (Admin) it was held that the Court was bound by the reasoning in Singh [2015] EWCA Civ 74 to conclude that the Secretary of State had been ent......
  • Upper Tribunal (Immigration and asylum chamber), 2016-10-14, IA/18035/2015
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 14 October 2016
    ...also confirmed in R(on the application of Rajibul Islam) [2015] EWCA Civ 312. In R (on the application of Taylor and Owusu-Akyeaw) [2015] EWHC 3526 (Admin) it was held that the Court was bound by the reasoning in Singh [2015] EWCA Civ 74 to conclude that the Secretary of State had been enti......

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