Ruksana Hassan & Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 18 March 0013 |
| Neutral Citation | [2013] EWHC 582 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2013 |
| Docket Number | Case No: CO/5534/2011 |
| Date | 2013 |
[2013] EWHC 582 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
Mr Justice Haddon-cave
Case No: CO/5534/2011
Mr R. De Mello and Tony Muman (instructed by J.M. Wilson Solicitors for the Claimant
Vinesh Mandalia (instructed by Treasury Solicitors) for the Defendant
Hearing date: 29/01/2013
JUDGMENT APPROVED BY THE COURT
INTRODUCTION
This case raises issues as to the application of the transitional provisions of Policy DP5/96 relating to immigrant families with children with more than 7 years residency in the UK and the correct scope of the doctrine of legitimate expectation.
By these Judicial Review proceedings, the Claimants Ruksana Hassan and her four children, Imran Hassan, Fatima Hassan, Aiza Hassan and Eeman Hassan challenge the decision of the Secretary of State for the Home Department ("SSHD") made on 11 th March 2011 refusing to grant the Claimants indefinite leave to remain ("ILR") in the UK and only granting the Claimants three years discretionary leave to remain ("DLR"). The SSHD rejected the Claimants claim to be entitled to rely on Policy DP5/96.
THE FACTS
Arrival in 2000
The Claimants are Pakistani nationals. The First Claimant, Ruksana Hassan, arrived in the UK as a visitor on 16 th April 2000. She was accompanied by her husband, Iftikhar Ahmed (also Pakistani), and their then three children namely, Imran, Hassan, and Aiza (the Second, Third and Fourth Claimants). Their fourth child, Eeman (the Fifth Claimant), was born in the UK on 19 th November 2002. The Claimants overstayed in the UK illegally.
Contact in 2007
7 years and 2 months after first arrival, the First Claimant caused a letter to be sent by the Immigration Advisory Service ("IAS") to the SSHD on 6 th June 2007 making an application on behalf of all the Claimants for leave to remain ("LTR") to the SSHD in the UK "on the basis of Article 8 of the [ECHR]'. The letter stated: "As you are well aware an application made under this provision does not require any particular form nor the payment of fees". The letter explained that the First Claimant's husband, Iftikhar Ahmed, had claimed asylum shortly after arrival for himself and his dependents, but he had left his family two months previously and it was not know what happened to the asylum application. The penultimate paragraph of this lengthy letter stated as follows:
"We further submit that our client's three children have been in the UK for over 7 years the 7 years Children's Policy of the Home Office applies to our clients."
On 17 th July 2007, the SSHD replied to IAS "regarding the above-named asylum claim" stating that there was no record of the First Claimant's family having made a claim for asylum and that before they could claim asylum they must present themselves at a local Asylum Screening Unit. The Home Office reference "H1180361" appeared at the top left hand side of the letter. It is clear from internal government records that the Home Office File Number "H1180361" was ascribed to the matter on 14 th June 2007.
On 26 th September 2007, the IAS wrote to the SSHD explaining that in their letter of 6 th June 2007 the Claimants had made an immigration application and not a claim for asylum. The IAS stated that the application was made on three basis: Article 8, the Concessionary Policy and "on the basis of the 7 years children's Policy of the Home Office". There was no response by the SSHD to this letter.
On 13 th March 2008, the SSHD received a letter from Messrs Marks & Marks Solicitors to the Defendant stating they were now instructed on behalf of the Claimants who had previously made an application for ILR. The letter stated that in view of the Claimants' residence in the UK for over 7 years that the case "therefore falls under the rules of DP/5/99". There was no response by the SSHD to this letter.
On 9 th October 2008, the First Claimant herself wrote to the SSHD regarding her application for ILR. She stated that she recognised that the Home Office was "very busy" but asked for the facts which she had drawn to their notice to be considered and something done "urgently". There was no response by the SSHD to this letter.
On 10 th October 2008, Messrs Marks & Marks wrote to the SSHD requesting an update as to the progress of matters. The letter referred again to the "7 year concessionary Policy" and asked for "an early decision" on the matter. There was no response by the SSHD to this letter.
On 14 th October 2008, Messrs Marks & Marks wrote to the SSHD correcting the Claimants' Home Office Reference referred to in the letter dated 10 th October 2008. There was no response by the SSHD to this letter.
Policy DP5/96 withdrawn on 9 th December 2008
On 9 th December 2008, Policy DP5/96 was withdrawn with immediate effect and transitional provisions put in place (see further below).
On 11 th March 2009, Messrs Marks & Marks wrote to the SSHD enclosing a Form SET (O) Application on behalf of the five Claimants requesting ILR or DLR, together with the appropriate fee. The covering letter referred to Articles 3, 5 and 8 of the ECHR and also stated as follows:
"As our previous representations indicate that the above family benefits from 7 years concessionary period for families under the age of 18."
There was a response from the SSHD to this letter. On 17 th March 2009, the SSHD wrote to Messrs Marks & Marks Solicitors acknowledging receipt of the application made by the Claimants on Form SET (O). On 4 th June 2009, the SSHD again wrote confirming receipt of the Claimants' application and stating the "application is valid".
On 21 th December 2010, the SSHD wrote to Messrs Marks & Marks requesting further information concerning the identity of the Claimants and their circumstances in the UK.
The Decision letter of 11 th March 2011
On 11 th March 2011, the SSHD wrote to Messrs Marks & Marks refusing the Claimants' application for ILR under the 'long residency rules' and only granting the Claimants three years DLR ( i.e. until 11 th March 2014). This is the Decision letter which is challenged by these proceedings.
On 14 th June 2011, the Claimants issued the present proceedings for judicial review.
THE LEGISLATION AND POLICY
The general power of the SSHD to regulate and control immigration in the UK is derived from s. 3 Immigration Act 1971:
"3. — General provisions for regulation and control.
(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 ……"
Policy DP5/96
In March 1996, the SSHD introduced a policy concerning deportation cases where there were immigrant families with children with long residence. The Policy was known as "DP5/96" ("Policy DP5/96'). In its original form, Policy DP5/96 was concerned with cases of residence by immigrant children of ten years or more and gave rise to no presumption that leave would be granted. It was worded as follows:
"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE
Introduction
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 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 10 years or more continuous residence.
Policy
Whilst it is important that each case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception.
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."
On 2 nd April 2007, Policy DP5/96 was revised so as to reduce the required residence period from 10 years to 7 years and to introduce a presumption that leave to remain would be granted to such children, save in exceptional circumstances (see the observations of the Court of the Appeal in NF(Ghana) v SSHD [2008] EWHC 906 (Admin)).
On 9 th December 2008, the then Minister of State at the Home Office, Mr Woolas MP, announced that Policy DP5/96 was being withdrawn with immediate effect. It was (belatedly) realised that Policy DP5/96 introduced perverse incentives and was open to abuse. The full Hansard report of the Ministerial his statement reads as follows:
"The United Kingdom Border Agency is withdrawing DP5/96, a concession which has also been referred to as the seven year child concession, as of 9 December 2008. The concession set out the criteria to be applied when considering whether...
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