Farinloye & Ors, R (on the application of) v Secretary of State for the Home Department

This appeal arises out of an application by Mrs Esther Farinloye, on behalf of herself and her two daughters, for indefinite leave to remain in the United Kingdom. The Secretary of State refused the application and at the same time served notice of a decision to remove them from the United Kingdom. They appealed to the Asylum and Immigration Tribunal (“the AIT”) on human rights grounds. An immigration judge allowed their appeals on the basis that removal would be in breach of article 8 ECHR. The Secretary of State did not challenge that decision. On 14 November 2006 he granted Mrs Farinloye and her daughters three years’ discretionary leave to remain. They then brought a judicial review claim, contending that they should have been granted indefinite leave to remain. Collins J allowed the claim, holding that in order to give effect to the immigration judge’s determination the Secretary of State was required to grant indefinite leave to remain. The Secretary of State appeals against the judge’s order.

The claimants are Nigerian nationals. Mrs Farinloye arrived in the United Kingdom in October 1999. Her two daughters, Adeola (born 25 August 1987) and Ayotunde (born 20 November 1988) arrived in December 1999. They were each granted limited leave to enter as a visitor for a period of six months from the date of their arrival. They overstayed in breach of the Immigration Rules and were thereafter all liable to removal. On 10 April 2003 Mrs Farinloye made a written application, on behalf of herself and her daughters, for indefinite leave to remain “on exceptional compassionate grounds”.

There was a long delay in dealing with the application. Eventually, by letter dated 27 June 2006 the Secretary of State refused both indefinite leave and discretionary leave to remain. At the same time each of the claimants was served with Form IS151B giving notice that “a decision has now been made to remove you from the United Kingdom” and informing them of their right to appeal against that decision. The letter of 27 June included reasons why it had been decided to remove them.

The claimants appealed to the AIT. The notice of appeal did not spell out the decision being appealed against. The grounds of appeal were directed at least in part to the refusal of indefinite leave to remain, contending in paragraph 1 that the claimants had demonstrated exceptional and compassionate circumstances and that the Secretary of State ought to have exercised his discretion in the claimants’ favour, and in paragraph 2 that the decision not to apply policy DP5/96 (the concession in respect of children who have been in the United Kingdom for seven years) was unreasonable and that no consideration had been given to the peculiar circumstances of the daughters.

In a determination promulgated on 17 October 2006, Immigration Judge Herbert allowed the appeals. In paragraph 1 of his determination he described the appeals as being “against the decision [to refuse entry clearance] to refuse an application for leave to remain on the grounds that removal would place the United Kingdom in breach of its obligations under the Human Rights Act 1998 and the consequent removal directions under Section 10 of the Immigration and Asylum Act 1998”. The reference to a refusal of entry clearance, which I have placed in square brackets, was an obvious error and can be ignored. But it was also an error to describe the appeals as being against the decision to refuse leave to remain (which, as explained below, does not itself carry a right of appeal) and against removal directions (which had not yet been set). They were in reality appeals against the decision to remove, as the immigration judge appeared to recognise later in his decision, at paragraph 26. That point is at the heart of the Secretary of State’s appeal to this court.

The immigration judge took a relatively relaxed view of Mrs Farinloye’s conduct in overstaying. He said at paragraph 20 that she did not have a history of any deception practised on the immigration authorities. She impressed him “as a person who had extremely sincere values and beliefs and was somewhat ashamed of her conduct in overstaying at all”. The overwhelming support she had received from her church and the community “strongly suggests that this is a person who would not lightly circumvent Immigration Rules however desperate the situation was”.

He referred to policy DP5/96 relating to families with children who had been in the United Kingdom for over seven years. He said that, whilst this policy did not strictly apply, the daughters came extremely close to falling within it: on his calculation they had been here some six years and eight months. The fact that they came so close was primarily because there had been a significant delay in the Home Office reaching a decision in their case. The determination continued:

“23.

One fact of the delay in the Home Office making a decision between 2003 and 2006 is that both children would have gone a long way to completing their education within the United Kingdom. Indeed it is a factor that the United Kingdom has invested a significant amount of money in their education to date and it is clear that both children have achieved in spite of the uncertainty with their immigration status and therefore certainly as regards the effect upon them their education is likely to suffer a major setback if they are both removed to Nigeria at this juncture. They have been here through no fault of their own primarily because of their mother’s decisions and secondly in part because of a delay occasioned by the Home Office.”

He continued in similar vein, mentioning that the elder daughter had embarked upon a degree course and that the younger daughter had attained four A levels and was studying law. He said that they had gone a long way to “re-establishing” themselves in the United Kingdom and had spent their formative adolescent years in the United Kingdom. If the decision had been taken in 2003 or 2004 it was highly unlikely that either of them would have suffered so much disruption to their education. He concluded:

“26.

I find this a finely-balanced case and that taking all those factors into consideration I find that the decision to remove all three appellants falls on the peculiar facts of this case on the exceptional nature of the delay and the effect that that has had on the second and third appellants re-establishing themselves in the United Kingdom which is not an easy undertaking for children to do. I also had regard to the … well-publicised case of the Ukrainian student who in very similar circumstances was allowed to remain having had the support of Cambridge University and having obtained significant academic success ….

27.

Immigration policy needs to be fair but firm but also needs to be consistent. I find that the education achievement and disruption that these two appellants would face is not vitiated by the fact that it was their mother’s decision essentially who led to their coming to the United Kingdom in the first place and overstaying. These were not decisions to which they were party and certainly the delay between 2003 and 2006 cannot be laid at their door either.

28.

I find that the balancing act in this case falls in favour of the peculiar facts of this case as falling into that category of an exceptional combination of circumstances envisaged by Huang and therefore this decision on a balance of probabilities is that this appeal should be allowed for the reasons stated. …”

Although that was not the strongest and best reasoned of decisions, it was not challenged by the Secretary of State.

The claimants’ solicitor thereupon wrote on 26 October 2006 to ask the Secretary of State that the claimants be granted indefinite leave to remain:

“[A]s you are probably aware, Judge Herbert allowed their appeal against the decision of the Home Office refusing their application for ILR. …

The Home Office did not apply for a review of the determination and the time for requesting a review has now expired. Accordingly we respectfully ask that our clients be granted ILR in the United Kingdom in line with the determination of the Immigration Judge”.

The response was a letter dated 14 November 2006 from the Home Office to Mrs Farinloye (but also naming her two daughters in the heading), which stated:

“I am writing to inform you that, although you do not qualify for leave to remain in the United Kingdom under the Immigration Rules, it has nonetheless been decided that discretion should be exercised in your favour. You have therefore been granted limited leave to remain in the United Kingdom in accordance with the principles set out in the Home Office Policy Instruction on Discretionary Leave. You have been granted Discretionary Leave to remain until 14 November 2009.”

The policy on discretionary leave to which the letter referred provides, so far as relevant:

“Where the return of an individual would involve a breach of Article 8 of the ECHR (right to respect for private and family life) on the basis of family life established in the UK, they should be granted 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 six years in total … before being eligible to apply for ILR.

Article 8 cases – three years ….”

The claimants challenged the decision of 14 November 2006 by way of judicial review, contending that the Secretary of State had acted unlawfully in granting discretionary leave rather than indefinite leave to remain. Collins J gave judgment on 10 November 2008, allowing the claim. I shall consider the grounds of challenge and the judge’s reasoning in a moment.

The Secretary of State was granted permission by Hooper LJ to appeal against Collins J’s order. The appeal was due to be heard in November 2009 but the hearing was adjourned to enable the claimants, as respondents to the appeal, to obtain legal representation. The result was that at the hearing before us they were represented by solicitors and counsel, Ms Naik.

In the meantime, in December 2009, the Secretary of State granted Mrs Farinloye and her younger daughter, Ayotunde, a further three years’ discretionary leave to remain. The reasons why the elder daughter, Adeola, had not obtained a renewal of her discretionary leave were not apparent to us until the very end of the hearing, when Ms Naik handed in a draft further witness statement of Mrs Farinloye. Despite its status as an unsigned draft, not served on or considered by the Secretary of State, we have no reason to doubt the information given in that document. It reveals a most unfortunate state of affairs arising out of the grant of discretionary leave. It states:

“4.

Adeola started studying at Bristol University in September 2006. She started on a physiology course which she would then transfer from to go on to do medicine. Following grant of discretionary leave to remain in the UK, evidence of this was provided to the University. They advised us that Adeola would need to pay overseas fees which were likely to be in the region of around £13,000 to £14,000 per annum. Unfortunately we were not able to afford those fees and as a result Adeola left the University towards the end of the first year. We still owe the University fees for that first year of her studies. Given our inability to afford the fees, Adeola worked for one year to try to build some savings. Again we discussed the possibility of her pursuing further studies in the UK, but the cost was simply too prohibitive. As a result Adeola secured enrolment at Charles University in Prague. The fees at that University for a medicine course were £8,000 compared to around £14,000 in the UK. I have funded Adeola’s studies with help from my brother.

5.

Ayotunde started a law degree course at the University of Manchester in September 2007. We provided the University with the Judge’s Determination and evidence regarding grant of discretionary leave. They agreed to accept her as a home student and she has been able to continue her studies.

6.

Our discretionary leave was due to expire in November 2009. Shortly beforehand I applied for further leave for myself and both my daughters. Unfortunately Adeola’s application was rejected and returned because she was not in the UK at the time of making the application. I was not aware that she could not make an application for extension of discretionary leave whilst outside the UK. I have now been advised that realistically unless my Judicial Review application succeeds, Adeola may not be able to return to the UK. It is ironic that our appeals were allowed on the basis that it would be unfair and unreasonable to return us overseas especially given the strong ties that my daughters had established in the UK but that one of my daughters has now effectively been excluded from the UK ….”

The grounds of claim attached to the judicial review claim form were all to the effect that the immigration judge’s determination allowing the appeals left the Secretary of State with no lawful alternative to granting indefinite leave to remain. They relied heavily on the decision of the Court of Appeal in R v Secretary of State for the Home Department, ex parte Boafo [2002] EWCA Civ 44.

Ex parte Boafo arose out of an application for indefinite leave to remain as the spouse of a person present and settled here. The applicant was entitled to indefinite leave if the requirements of paragraph 287 of the Immigration Rules were satisfied. One of the conditions was that each of the parties intended to live permanently with the other as his or her spouse. The Secretary of State refused indefinite leave on the basis that that condition was not satisfied. An adjudicator allowed an appeal, but in a highly unsatisfactory decision which did not address the relevant issue. The Secretary of State did not seek to appeal against the decision but proceeded to reconsider the application for indefinite leave in the light of the adjudicator’s determination and of further information that the marriage had broken down and been dissolved. He refused the application. That refusal was challenged by way of judicial review. The Court of Appeal held that the unappealed decision of the adjudicator was binding on the parties even though the adjudicator had not exercised his power to give directions for giving effect to the determination; and that in the circumstances it was not open to the Secretary of State to reopen the matter. Paragraph 287 of the Immigration Rules conferred the permanent status of a person entitled to indefinite leave to remain whatever subsequently happened to the marriage. The court therefore directed that the Secretary of State was to grant the applicant indefinite leave to remain.

In the present case, the first ground of claim relied on Ex parte Boafo in contending that the Secretary of State “erred in law in deciding to reconsider and make a fresh decision in the matter after and despite a determination by an Immigration Judge allowing the appeal notwithstanding the absence of directions for giving effect to the determination”. The second ground relied on Ex parte Boafo in the alternative as authority for the proposition that “if an Immigration Judge when issuing his determination does not give directions for giving effect to the determination …, then, in the absence of an appeal, the only lawful executive decision of the Secretary of State is to implement the determination”, and it was contended that in the circumstances the decision to grant limited rather than indefinite leave to remain was unreasonable. The third ground was that the combined effect of sections 82 to 87 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) was that the Secretary of State had “no power to set aside” the determination of the immigration judge and that the Secretary of State therefore erred in law in failing or neglecting to give full effect to the determination of the immigration judge “allowing the Claimants’ appeal against the earlier refusal of their application for indefinite leave to remain”.

The claimants’ case before Collins J was put on the same basis as in the grounds of claim. In his judgment the judge considered Ex parte Boafo, relying on it as showing that the decision of the adjudicator was binding on the Secretary of State. He referred to the Secretary of State’s contention that in the present case the immigration judge had found in favour of the claimants on the basis of article 8 and that the Secretary of State was entitled to apply the policy relating to the grant of discretionary leave in such cases. The judge described that as being on the face of it a powerful argument, and he referred to R (Shahid) v Secretary of State for the Home Department [2004] EWHC 2550 (Admin) in which a challenge to the refusal to grant indefinite leave to remain in an article 8 case had failed. He continued:

“18.

This case is different. The application that had been turned down by the Secretary of State was an application for indefinite leave to remain. The Immigration Judge reached his conclusion that there were exceptional circumstances based upon the daughters’ education. It would have been open to him to have taken the view that it was not necessary or appropriate to give leave to remain for a period that went beyond that necessary to ensure that they could complete their education in this country. However, he did not put any such limitation expressly in his determination and, as has been properly pointed out by [counsel for the claimants], the Immigration Judge used the fact that they were only just short of the necessary seven years, which would have resulted in indefinite leave to remain, as one of the factors which weighed in the balance in enabling him to decide as he did.

19.

It seems to me, in those circumstances, that the allowing of the appeal against the refusal to grant indefinite leave to remain meant that the result had to be the grant of indefinite leave to remain, unless the Immigration Judge made some directions or reached some findings which led to a different view being taken. It would have been open to the Secretary of State to have made an application to the Immigration Judge for clarification of the effect of his determination and asked him, if necessary, to make directions so that the Secretary of State could act in a way which was consistent with his determination.

…

21.

Be that as it may, the result, in my judgment, is that, in the circumstances of this case (and I emphasise that it is the circumstances of this case that dictate this decision; there is nothing which can be regarded as a precedent in this), the result is that the letter granting only discretionary leave was wrong and that the only proper way to put into effect the decision of the Immigration Judge was to grant indefinite leave to remain.”

The case advanced by Mr Patel for the Secretary of State is that Collins J erred in two closely related respects: (1) he was wrong to conclude that the immigration judge allowed appeals against the Secretary of State’s refusal to grant indefinite leave to remain; and (2) he was wrong to conclude that the effect of the immigration judge’s determination was to compel the Secretary of State to grant the claimants indefinite leave.

In the event, Ms Naik did not seek to uphold Collins J’s reasoning. She did, however, seek to advance on the claimants’ behalf a very different case from that put forward below. I shall return to that aspect of the matter once I have considered the basis of the Secretary of State’s appeal.

The central plank in the reasoning of Collins J was that the appeals to the AIT were against the Secretary of State’s refusal to grant indefinite leave to remain, which led him to conclude that indefinite leave had to be granted once the appeals had been allowed without qualification. It is perhaps unsurprising that he viewed the matter in that way, given the terms in which the appeals were described at paragraph 1 of the immigration judge’s determination and in the claimants’ grounds, and the focus on Ex parte Boafo in the arguments before him. The true position, however, is that the appeals were against the decision to remove the claimants, and the immigration judge allowed the appeals on the ground that the claimants’ removal in consequence of that decision would be incompatible with their rights under article 8 ECHR.

By section 82(1) of the 2002 Act an appeal to the tribunal lies against an “immigration decision” as defined by section 82(2). Of the categories of decision falling within that definition, the only one relevant to the present case is (g), namely “a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a) … of the Immigration and Asylum Act 1999 [“the 1999 Act”] … (removal of person unlawfully in United Kingdom”. Each of the claimants had been served with notice of a decision that she was to be removed by way of directions under section 10(1)(a) of the 1999 Act. That was the decision against which a right of appeal existed and was exercised.

The refusal of leave to remain led to, and was notified together with, the decision to remove the claimants by way of directions under section 10(1)(a) of the 1999 Act, but the refusal of leave to remain was not itself a decision against which there lay a right of appeal under section 82(1) of the 2002 Act. A refusal to vary leave to remain, and a variation of leave to remain if the result is that the person has no leave to remain, are immigration decisions against which leave to appeal does lie (see section 82(2)(d) and (e) respectively); but a simple refusal of leave to remain is not.

Further, an appeal under section 82(1) against an immigration decision must be brought on one or more of the grounds set out in section 84(1) of the 2002 Act. The only applicable ground, and the ground on which the immigration judge’s decision was based, was (g), namely “that removal of the appellant from the United Kingdom in consequence of the immigration decision … would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights”. That underlines the point that the appeal was against the decision to removethe claimants, not against the refusal of leave to remain.

Accordingly, the immigration judge did not allow appeals against the Secretary of State’s refusal of leave to remain, but against the decision to remove the claimants from the United Kingdom. It is this feature which, as Ms Naik again accepted, distinguishes the present case from Ex parte Boafo, where the appeal was indeed against the refusal of indefinite leave to remain, in circumstances where the appellant claimed to be entitled to such leave under the Immigration Rules.

This not only destroys the central plank in Collins J’s reasoning but also leads into the next part of the Secretary of State’s case. Mr Patel submits that the immigration judge’s determination did not and could not compel the Secretary of State to grant the claimants indefinite leave to remain in the United Kingdom. The power to grant leave to remain is a discretionary power entrusted to the Secretary of State by section 4(1) of the Immigration Act 1971. Because, as held by the immigration judge, it would be unlawful for the Secretary of State to remove the claimants from the United Kingdom, the Secretary of State had to decide whether to exercise his discretion to grant leave to remain and, if so, for how long. The Secretary of State was entitled to have regard to the policy on discretionary leave and to grant leave in accordance with that policy.

Ms Naik’s new arguments were directed to this part of the Secretary of State’s case and, more generally, to the lawfulness of the Secretary of State’s exercise of discretion. As explained below, those arguments required amendments to the judicial review grounds, for which we refused permission. Leaving aside those matters, Mr Patel is plainly correct in his submission that the immigration judge’s decision did not compel the grant of indefinite leave to remain. Once it is understood that the decision related only to the lawfulness of removal from the United Kingdom and that Ex parte Boafo is distinguishable as a case relating to claimed entitlement to indefinite leave under the Immigration Rules, it can be seen that there is no legal requirement to grant indefinite leave in order to give effect to the decision. In this case the Secretary of State had a genuine discretion in relation to the question of leave.

Accordingly, in relation to the judicial review grounds considered by the judge, there is in my judgment no answer to the Secretary of State’s appeal against the order made by Collins J.

Ms Naik supplied the court with a “Respondent’s notice and skeleton argument” in which she sought to advance a very different challenge to the Secretary of State’s refusal of indefinite leave to remain. It included submissions that the policy on discretionary leave is itself unlawful, that the Secretary of State unlawfully fettered his discretion by applying the policy, that he failed to give proper reasons to explain or justify the grant of discretionary leave rather than indefinite leave, and that the refusal to grant indefinite leave amounted to unjustified discrimination contrary to article 14 ECHR. Ms Naik acknowledged that she would need permission to amend the judicial review grounds to advance those matters and that some of them would necessitate an adjournment. For the most part, we had no doubt that the matters were raised far too late. They should have been raised in the proceedings below, at a time when the Secretary of State had a proper opportunity to consider and respond to them, including the possibility of filing relevant evidence. It was wholly inappropriate to allow them to be ventilated for the first time on appeal, all the more so when it would necessitate an adjournment of the hearing of the appeal.

There were two points, however, in relation to which we explored more closely the possibility of allowing amendments to be made without the need for a substantial adjournment. One was a submission that the only rational response to the immigration judge’s determination was the grant of indefinite leave, given the importance attached by the immigration judge to the fact that the daughters’ period of residence in this country fell only just short of the seven years that would have brought them within policy DP5/96, and that they had spent their formative adolescent years in this country. Although Ms Naik argued to the contrary, this point was not covered by ground 2 of the grounds of claim, which was expressly based on Ex parte Boafo, but the amendment required was not a major one.

The other point was a submission that the Secretary of State’s decision letter of 14 November 2006 was a standard form application of the discretionary leave policy and failed to give consideration to the grant of indefinite leave as requested in the letter of 26 October 2006 from the claimants’ solicitor: Ms Naik proposed an amendment along the lines that “the decision of the Secretary of State failed to respond to the letter of 26 October requesting indefinite leave to remain or to give reasons why he refused to depart from his policy, with reference to the determination of the immigration judge or at all”.

Mr Patel objected even to those two points being raised on the appeal. They were not part of the judicial review claim and were not argued before Collins J. Moreover they did not arise out of the letter of 26 October 2006 from the claimants’ solicitor on which Ms Niak relied. That letter did not suggest that the Secretary of State had to grant indefinite leave because it was the only rational response to the immigration judge’s decision. It said only that the immigration judge had “allowed [the clients’] appeal against the decision of the Home Office refusing their application for ILR”, and requested that indefinite leave be granted “in line with the determination of the Immigration Judge”. Thus the only point raised by the letter was that which formed the basis of the judicial review claim and the judge’s decision. It would not be proper to allow the new points to be raised without giving the Secretary of State an opportunity to consider and reply to them. It was still open to the claimants to make representations to the Secretary of State that the only rational response to the immigration judge’s determination was the grant of indefinite leave, to which the Secretary of State could give a reasoned reply (including, if so advised, reasons for not departing from the policy on discretionary leave). Mr Patel submitted that the claimants would not suffer significant prejudice by adopting that course. He conceded that there were probably no arguments on which the Secretary of State would wish to rely which could not be advanced by counsel at the hearing before us, but he pointed out that the decision was one for the Secretary of State, not counsel; and, whilst expressing a willingness to try to take all necessary instructions within half an hour or so if the amendments were allowed, he entered the reservation that points might arise with which it would not be possible for him to deal at the hearing.

Having considered the rival submissions, we decided against granting Ms Naik the permission she needed to advance even the two points to which I have referred. We did so for essentially the reasons put forward by Mr Patel, save for his submission as to lack of prejudice to the claimants. In particular, we accepted that the claimants’ case had been advanced from the outset on the narrow (and mistaken) basis dealt with by Collins J and that it would not be right to allow an altogether different case to be advanced for the first time at the hearing of the appeal and in circumstances where the Secretary of State, as the relevant decision-maker, had not been given a proper opportunity to consider the representations made and to give a reasoned reply to them.

As to the issue of prejudice, Mr Patel accepted that, although Mrs Farinloye and her younger daughter, Ayotunde, have been granted a three year extension of their discretionary leave to remain, this confers on them a less advantageous status than indefinite leave to remain, so that they are prejudiced to some extent by any delay in their effort to obtain indefinite leave. The major prejudice, however, is that suffered by the elder daughter, Adeola. I have set out the position in relation to her at paragraph [15] above, quoting from Mrs Farinloye’s draft witness statement. As a result of the circumstances there described, Adeola does not now have even discretionary leave and has no right to return to this country. For her, any delay in the effort to obtain indefinite leave is a serious disadvantage. We took these matters into account in considering whether to allow the amendments sought by Ms Naik, but decided that they did not outweigh the factors telling against permission to amend.

Although it does not affect the outcome of this appeal, I have to say that Adeola’s position strikes me as a highly sympathetic one. It may be that her course of study abroad precludes an extension of discretionary leave in the normal way, but I would be surprised if, as her mother fears, the events that have occurred prevented her altogether from re-joining her mother and sister in the United Kingdom. Putting to one side the possibility of further representations to the Secretary of State that the grant of indefinite leave was the only rational response to the immigration judge’s determination, I would hope and expect that if Adeola makes a further application for leave to enter the United Kingdom it will be given careful consideration in the light of the matters set out in this judgment.

For the reasons given, however, I would allow the Secretary of State’s appeal, quash the order made by Collins J and dismiss the claim for judicial review of the Secretary of State’s decision of 14 November 2006.

I agree.

I also agree.