The Secretary of State for The Home and Another v Mahbubur Rahman
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Moore-Bick,Lord Justice Thomas |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] EWCA Civ 814 |
| Docket Number | Case Nos: C4/2010/2819, C4/2010/2806 & C4/2011/0492 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2011 |
[2011] EWCA Civ 814
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HHJ Bidder QC (in the cases of Rahman and Abbassi)
David Holgate QC (sitting as a Deputy High Court Judge) (in the case of Munir)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thomas
Lord Justice Moore-Bick and
Lord Justice Stanley Burnton
Case Nos: C4/2010/2819, C4/2010/2806 & C4/2011/0492
John-Paul Waite (instructed by the Treasury Solicitor) for the Secretary of State
Zane Malik (instructed by Malik Law Chambers) for Mahbubur Rahman, Fauzia Abbassi, and Muhammad Munir
Hearing date: 23 May 2010
Introduction
These three cases arise from the withdrawal by the Secretary of State of DP 5/96, the so-called seven year child concession policy, under which families who did not have leave to be in this country, but with children who had been in this country for 7 years were, save in exceptional circumstances, allowed to remain here. In each of these cases, it is claimed that the policy must continue to be applied to the applicants, who made their applications for leave to remain to the Secretary of State after the policy had been withdrawn.
The Home Secretary appeals against the order of His Honour Judge Bidder QC quashing her decision to refuse Mr Rahman's application for leave to remain, and directing her to retake her decision applying policy DP 5/96. Mr Rahman and his family had lived in the UK for more than 7 years before the policy was withdrawn.
Mrs Abbassi applies for permission to appeal (with appeal to follow if permission is granted) against the decision of HHJ Bidder QC to dismiss her substantive application for judicial review of the Secretary of State's decision not to grant her leave to remain. Mrs Abbassi and her family had lived in the UK for less than 7 years before the seven year child concession policy was withdrawn.
Mr Munir appeals against the order of David Holgate QC (sitting as a Deputy High Court Judge) dismissing his application for permission to apply for judicial review of the Secretary of State's decision not to grant him leave to remain. Mr Munir and his family had lived in the UK for less than 7 years before the seven year child concession policy was withdrawn.
For convenience, I shall refer to Mr Rahman, Mrs Abbassi and Mr Munir collectively as "the applicants".
The policy and its withdrawal
DP 5/96 ("Deportation Policy 5/96") in its original terms was concerned with the criteria to be applied by immigration decision makers when considering whether enforcement action should proceed against families with children who had spent more than 10 years in this country. It was phrased neutrally: it did not direct the decision maker how to lean in the exercise of his discretion. However, in practice the policy as applied was not normally to remove in the case of families who had been living here for 10 or more years.
On 24 February 1999 the Under Secretary for the Home Department, Mr O'Brien, in a parliamentary written answer announced the revision to the policy:
"In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children and families [who have been] living in the United Kingdom continuously for seven or more years."
(Hansard 24.04.99, columns 309/310).
A policy modification statement was issued by the Home Office. It read:
"Deportation in Cases where there are children with long residence: Policy Modification announced by the Under-Secretary for the Home Department Mr O'Brien on 24 February 1999
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 normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 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 of the 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.
It is important that full reasons are given making clear that each case is considered on its individual merits.
In NF (Ghana) v Secretary of State [2008] EWHC 906 (Admin) Rix LJ highlighted that the policy revision replaced the neutral language of the original DP 5/96 with an express presumption against removal by which the Secretary of State accepted she was bound.
The assumption made by Rix LJ at paragraph 39 of his judgment, that the corollary of the policy's presumption against removal was a presumption in favour of granting leave to remain, was acknowledged to be the actual practice of the Home Secretary in A v Secretary of State for the Home Department [2008] EWHC 2844 (Admin). In that case John Howell QC, sitting as a Deputy High Court Judge, held that DP 5/96 applied outside the context of enforcement:
"30.…once regard is had to the practice (which the Secretary of State accepts is part of her policy) to grant ILR to a person to whom the presumption applies, it makes no sense to regard DP 5/96 as being concerned only with a decision whether to remove an individual and not with a decision whether to grant that individual leave to remain…..It can make no sense (when the circumstances are otherwise the same) to deny ILR to an individual because an individual has applied for it when the Secretary of State is not considering removing him but to grant it if the Secretary of State is considering removing him. In each case the individual concerned requires leave to be in this country and the question for the Secretary of State is whether or not to grant him ILR in accordance with policy DP 5/96."
On 9 December 2008 the Immigration Minister Mr Woolas announced the immediate withdrawal of DP 5/96. In a written ministerial statement (Hansard 9.12.08, column 49WS) he stated that the withdrawal was to ensure a more consistent approach to all cases involving children and to prevent a benefit accruing in particular to overstayers or people who are unlawfully present in the UK:
"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 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 withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the ECHR will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully."
The Home Office published transitional arrangements:
"From the 09 December 2008 the discretionary enforcement policy DP5/96 (also known as the Seven Year Child Concession) is formally withdrawn. All cases involving families with dependant children with long residence will now be considered under the Immigration Rules and Article 8 of the European Convention on Human Rights (ECHR) pursuant to the Human Rights Act 1998.
Transitional arrangements
There are likely to be existing cases where DP5/96 will continue to apply despite its...
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