R (on the Application of Munir and Another) v Secretary of State for the Home Department [Sup Ct]

JurisdictionEngland & Wales
JudgeLORD HOPE,LORD DYSON,LORD WILSON,LORD CLARKE,LORD WALKER
Judgment Date18 July 2012
Neutral Citation[2012] UKSC 32
Date18 July 2012
CourtSupreme Court
R (On the Application of Munir and Another)
(Appellants)
and
Secretary of State for the Home Department
(Respondent)

[2012] UKSC 32

Before

Lord Hope, Deputy President

Lord Walker

Lord Clarke

Lord Dyson

Lord Wilson

THE SUPREME COURT

Trinity Term

On appeal from: [2011] EWCA Civ 814

Appellant

Zane Malik

(Instructed by Malik Law Chambers Solicitors)

Respondent

Jonathan Swift QC

Joanne Clement

(Instructed by Treasury Solicitors)

Intervener (Joint Council for the Welfare of Immigrants)

Richard Drabble QC

Shahram Taghavi

Charles Banner

(Instructed by Lewis Silkin LLP)

Heard on 24, 25 and 26 April 2012

LORD DYSON (WITH WHOM LORD HOPE, LORD WALKER, LORD CLARKE AND LORD WILSON AGREE)

1

Section 3(2) of the Immigration Act 1971 ("the 1971 Act") provides that:

"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…."

2

The central question that arises in these two appeals is whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of their subsequent withdrawal amount to statements as to "the practice to be followed" within the meaning of section 3(2) of the 1971 Act which she must, therefore, lay before Parliament.

The statutory framework
3

The 1971 Act lies at the heart of these appeals. Section 1(4) provides:

"(4) The rules laid down by the Secretary of State 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 not having the rights of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."

4

Section 3(1) provides that a person who is not a British citizen (a) shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the 1971 Act; (b) may be given leave to enter or remain for a limited or indefinite period; and (c) if given leave to enter or remain, it may be subject to all or any of the specified conditions.

5

Section 3(2) should be set out more fully than at para 1 above:

"(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……

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying…….then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution…"

6

Section 3A(1) states that the Secretary of State may "by order make further provision with respect to the giving, refusing or varying of leave to enter"; and the following subsections make particular provisions in relation to such orders. Section 3B makes similar provisions in relation to the giving, refusing or varying of leave to remain. Section 3C deals with continuation of leave pending a variation decision, subsection (6) providing that the Secretary of State "may make regulations determining when an application is decided for the purposes of this section".

7

Section 4(1) provides:

"(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State……."

8

Section 33(1) states that "immigration rules" means "the rules for the time being laid down as mentioned in section 3(2) above". Section 33(5) provides: "This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative".

The relevant policies
9

In March 1996, the Secretary of State introduced Deportation Policy 5/96 ("DP5/96"). It was entitled "Deportation in cases where there are children with long residence". It defined "more clearly" the criteria to be applied by immigration decision makers "when considering whether enforcement action should proceed or be initiated against parents who 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". It stated that, whilst it was important that each individual case must be considered on its merits, certain factors (which were specified) might be of particular relevance in reaching a decision.

10

In June 1998, the Secretary of State issued chapter 18 of the Immigration Directorates' Instructions ("The Long Residence Concession"). It recognised that there was no provision in the immigration rules for a person to be granted indefinite leave to remain solely on the basis of the length of his or her residence. It stated that, where a person had 10 years or more continuous lawful residence or 14 years continuous residence, indefinite leave to remain should "normally be given in the absence of any strong countervailing factors". It made no specific reference to the position of children.

11

On 24 February 1999, the Under-Secretary for the Home Department announced a revision to DP5/96. The policy modification statement said that, whilst it was important that each case be considered on its merits, there were certain factors which were likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who had children who had lengthy residence in the United Kingdom. The "general presumption" would be that enforcement action would not normally proceed in cases where a child was born here and had lived continuously to the age of 7 or over, or where, having come to the United Kingdom at an early age, 7 years or more of continuous residence had been accumulated. The statement identified certain factors which would be relevant to reaching a judgment on whether enforcement action should nevertheless proceed in such cases.

12

On 31 March 2003, the Secretary of State laid before Parliament a statement of a number of changes to the immigration rules (HC 538). These included rules 276A to 276D which dealt with the issue of long residence. To a considerable extent, they occupied the same ground as the Long Residence Concession, but added some detail. So far as I am aware, there was no formal withdrawal of the Long Residence Concession, although it had been taken off the website by 8 November 2011. Rule 276B provided that the requirements for indefinite leave to remain on the ground of long residence were that an applicant had had at least 10 years continuous lawful residence or (excluding certain periods) at least 14 years residence and that, having regard to the public interest, there were no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account various specified factors.

13

On 9 December 2008, the Minister for Borders and Immigration announced the immediate withdrawal of DP5/96. In a written Parliamentary ministerial statement, he said:

"The [seven year child] concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived continuously to the age of seven or over or where, having come to the UK at an early age, they have accumulated seven years or more continuous residence. The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules."

The facts
14

Mr Rahman is a citizen of Bangladesh. He entered the United Kingdom with his wife and two children on 17 September 2001 on a visitor's visa which expired on 16 February 2002. His application for an extension of his leave was refused on 11 March 2003. Thereafter, he and his family remained in the country unlawfully. On 20 July 2009, he applied for indefinite leave to remain. This application was refused on 12 February 2010 on the grounds that he did not satisfy the test for indefinite leave to remain under rule 276B. The Secretary of State also considered the application on an exceptional basis outside the immigration rules, but was satisfied that there were no compelling or compassionate grounds that would warrant the grant of indefinite leave to stay...

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