ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing DBE |
| Judgment Date | 29 April 2021 |
| Neutral Citation | [2021] EWHC 1085 (Admin) |
| Date | 29 April 2021 |
| Docket Number | Case No: CO/5025/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1085 (Admin)
Lady Justice Elisabeth Laing
and
Mr Justice Lane
Case No: CO/5025/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Goodman and Mr Amunwa (instructed by Deighton Peirce Glynn) for the Claimants
Mr Kovats QC, Mr Thomann and Mr Tabori (instructed by Government Legal Department) for the Defendant
Hearing dates: 17 and 18 March 2021
Approved Judgment
Introduction
VW (‘C2’) is the mother of ST (‘C1’). We describe her immigration history below (paragraph 10). The Claimants (‘the Cs’) challenge a decision and a scheme:
i. the Secretary of State's decision on 22 November 2019 to impose a condition of no recourse to public funds (‘NRPF’) on the grant to C2 of limited leave to remain (‘LLR’) (‘the Decision’) and
ii. the NRPF scheme: that is, paragraph GEN1.11A of Appendix FM to the Immigration Rules (‘the Rules’) and ‘Family Life (as a partner or parent) private life and exceptional circumstances’ (‘the Guidance’).
This is the judgment of the Court on that challenge.
The Cs' solicitors sent a pre-action protocol letter to the Secretary of State challenging the Decision on 10 December 2019. The application for judicial review was filed on 20 December 2019. On 23 December 2019, Freedman J granted the Cs anonymity and interim relief, staying the NRPF condition and treating it as of no effect ‘pending the resolution of the application for permission or further order’. On 24 December 2019, the defendant responded to the pre-action protocol letter, agreeing to reconsider the imposition of the NRPF condition. On 27 December 2019, that condition was lifted, but only prospectively.
On 16 December 2020 Knowles J made a consent order giving permission to apply for judicial review of the NRPF scheme. The Cs do not have permission to apply for judicial review of the Decision. The Secretary of State conceded in the detailed grounds of defence that the imposition of the condition was incorrect. This led the Court to refuse permission to apply for judicial review of the Decision, on the grounds that the challenge was academic. The Cs renewed their application for permission. By a consent order dated 20 January 2021, that application was adjourned to ‘rolled-up hearing’ in this Court. As we will explain, the Cs contend that the challenge to the Decision is not academic.
The Cs ask, in this Court, for the Decision to be quashed, a declaration that the NRPF scheme is unlawful and damages for breach of their Convention rights.
The Cs challenged the Decision and the NRPF scheme on seven grounds. They do not pursue ground 4. The Cs put their grounds in three groups.
The Cs described one group of grounds (grounds 1 and 5) as ‘the PRCBC grounds’.
i. Ground 1 of these grounds has two distinct aspects.
1. The Decision was unlawful, irrational and arbitrary. The Secretary of State did not treat C1's best interests as a primary consideration (contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) (ground 1)).
2. The design of the NRPF scheme, and its operation in practice, fail to provide effective protection to the best interests of children and thus breach the duty imposed on the Secretary of State by section 55 of the 2009 Act. We will describe this as ‘the section 55 PRCBC ground’.
ii. The NRPF scheme and decisions taken under it unlawfully deprive British citizen children and their parents of statutory entitlements to benefits which are designed to safeguard fundamental rights (not to be homeless, hungry, destitute or subjected to inhuman treatment) (ground 5). We will describe this as ‘the statutory construction PRCBC ground’.
These grounds reflect the two main grounds of challenge in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2021] EWCA (Civ) 193. The claimants in that case challenged the fees payable for registering a child as a British citizen. The first of these two grounds succeeded in the PRCBC case. The second did not.
The second group of grounds relies on allegations of breaches of the Equality Act 2010 (‘the 2010 Act’) and of the European Convention on Human Rights (‘the ECHR’).
i. The Decision unlawfully discriminated against the Cs
1. contrary to sections 9, 19 and 29(6) of the 2010 Act on the grounds of their colour, and
2. contrary to article 14 of the ECHR (read with article 8 and/or with article 1 of Protocol 1 (‘A1P1’)) on the grounds of race/colour and/or national origin (ground 3).
We will describe these as ‘the 2010 Act ground’ and ‘the article 14 ground’, respectively.
ii. The Secretary of State has designed, and operates, the NRPF scheme without ‘due regard’ to the equality needs listed in section 149 of the 2010 Act, in particular to the ‘differential impacts’ of the policy on British children of foreign parents, on non-white British children and on single mothers and their children (ground 2). We will describe this as ‘the section 149 ground’.
The last group of grounds relies on article 3 of the ECHR and on the common law of humanity.
i. The NRPF scheme ‘takes insufficient account of and/or is incompatible with’ article 3. The Secretary of State amended the Guidance after the decision of this Court in R (W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin); [2020] 1 WLR 4420, but those amendments do not cure the flaws identified in that decision because they fail to ensure that NRPF conditions are, either, not imposed in the first place, or removed quickly enough (ground 6). We will describe this as ‘the systemic article 3 ground’.
ii. The NRPF scheme has been running for eight years. The Secretary of State has failed to discharge a positive obligation imposed by article 3 to have an effective inquiry to find out what has happened and to learn lessons (cf R (MA and BB) v Secretary of State for the Home Department [2019] EWHC 1523 (Admin) at paragraphs 38 and 42). MA and BB concerned the physical mistreatment and abuse of immigration detainees by those responsible for detaining them in Brook House Immigration Removal Centre. The Secretary of State accepted in principle that an article 3 investigation was necessary in that case (judgment, paragraph 4) (ground 7). We will describe this as ‘the article 3 investigative ground’.
At the hearing, the Cs were represented by Mr Goodman and Mr Amunwa. The Secretary of State was represented by Mr Kovats QC, Mr Thomann and Mr Tabori. We thank all counsel for their helpful oral and written submissions. We are also grateful to all members of the legal teams for their hard work in preparing the case for the hearing.
C1's immigration history
C was born on 27 November 1979. She is a citizen of South Africa, but was born in what is now Zimbabwe. She arrived in the United Kingdom in 2004 with six months' leave to remain as a visitor. She overstayed. She made applications for leave to remain which the Secretary of State refused. She absconded in August 2007. When she was next encountered, in September 2010, she made a claim for asylum, falsely claiming to be citizen of Zimbabwe. The Secretary of State refused her claim for asylum. Her appeal was dismissed in November 2010. Her appeal rights were exhausted in January 2011.
She began a relationship with a citizen of Zimbabwe in 2014. He had indefinite leave to remain (‘ILR’) in the United Kingdom as a refugee. In February 2016, they had a son, C1. Because C1 was born in the United Kingdom and his father had ILR, C1 is a British citizen. In October 2016, the Secretary of State gave C2 30 months' LLR. The Secretary of State did not impose a NRPF condition on that LLR. As we will explain, C2 has since been given a further period of 30 months' LLR. If she completes ten years of LLR, she will be eligible to apply for ILR, under what is called the ‘ten-year route’. We say more about that below, in paragraphs 61–66.
The structure of this judgment
In this judgment we will describe
i. the legislative framework
ii. the policy framework
1. the Rules
2. the Guidance
iii. the Policy Equality Statements (‘PESs’) which are relevant to the section 149 grounds
iv. the submissions on the grounds and our conclusions on them.
Before we do so, however, it is convenient for us to consider whether the challenge to the Decision is academic.
Is the challenge to the Decision academic?
The Cs explain (skeleton argument paragraphs 18 and 52) why, despite the prospective removal of the NRPF condition, the challenge to the Decision is still live. They argue that C2 is exposed to liability for prosecution for claiming benefits while subject to a NRPF condition and/or to action to recover the benefits and/or action to curtail her leave for breaching a condition of her leave, and that it would be open to the Secretary of State to take into account her breach of the conditions of her LLR when she next applies for renewal of her LLR. It is conceivable that such a condition could be re-imposed on C1 if she were given a further period of LLR when her current leave expires. They also contend that the Decision discriminated against C1 (or C2) contrary to the 2010 Act, and contrary to article 14 of the ECHR. The contention that those arguments, if successful, could entitle Cs to compensation in the County Court, or to damages under the Human Rights Act 1998 (‘the HRA’), respectively, is a further reason why the challenge to the Decision is not academic.
At the start of the hearing of this claim the Court indicated that it would grant permission to apply for judicial review of the Decision and that (in the light of the Secretary of State's...
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