Williams, R (on the application of) v Secretary of State for the Home Department

LORD JUSTICE AIKENS: This is an application by Daniel Williams and Christiana Williams, who seek permission to appeal the decision of Upper Tribunal Judge Kekic of 14 August 2014 when he refused to grant permission to bring judicial review proceedings.

The applicants are Ghanaian nationals. They are what is commonly called "overstayers". They have six children, who are aged between 16 and three years old. All live in this country; however, each of the six children were taken into care in 2013 by a Local Authority. The Family Court back in 2013 finalised a care plan for all six children, and this care plan was promulgated on 5 April 2013.

On 15 November 2013, the Secretary of State refused to grant both the current applicants leave to remain in the UK. There was an elaborate letter which accompanied the decision which set out the reasons for refusing the application. The letter dealt with the history, the position under Appendix FM of the Immigration Rules, the position with regard to the claim for leave to remain based on Article 8 of the ECHR, and the relevant paragraphs of the Immigration Rules concerning family life and Article 8.

At the end of the letter, under the heading "Consideration of section 55", the letter explained that the Secretary of State had considered the matter with particular reference to section 55 of the Borders, Citizenship and Immigration Act 2009. That section deals with the obligation of the Secretary of State with regard to her immigration, asylum, nationality and customs functions to have regard to the needs to safeguard and promote the welfare of children in the United Kingdom. The paragraph in the letter sets out what the position was with regard to the children who had been taken into care and noted that the application for leave to remain had been made some three years after the parents' leave to remain had actually expired in March 2009.

The conclusion of the Secretary of State was that despite the obligation under section 55, this was not a case where leave to remain should be granted to be parents.

The Secretary of State did not make any decision as to removal of the applicants, and it is on that point that Mr Jacobs has concentrated his submissions this morning. He submits that in the circumstances of this case, bearing in mind at the time of the refusal letter the position of the children, the Secretary of State should have made a decision then to remove the parents from the United Kingdom, thus giving the parents a right to appeal to the First Tier Tribunal against such a decision.

Mr Jacobs has very properly referred me to a decision of this court in R (Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161, in which the question of the effect of section 55 of the 2009 Act, and the Secretary of State's guidance in relation to it, applies when the issue of leave to remain and removal is to be considered by the Secretary of State. At paragraph 11 of the judgment of Sullivan LJ, it is stated that counsel was correct to submit that each case was fact sensitive. Sullivan LJ went on to say in the last sentence of that paragraph:

That was a case where the issue was whether the children should have been served with a removal notice. That is not this case, because it is the parents who are involved. Perhaps the Daley-Murdock case is an even stronger one, however.

The submission of Mr Jacobs this morning is that given the policy of the Secretary of State (which Mr Jacobs has set out in his admirably concise advocate's statement) this was a case where it was incumbent upon the Secretary of State to make a removal decision upon request. He points to what he submits are the particularly rare facts in this case. Mr Jacobs emphasises that the children are the subject of a care plan which has been approved by the Family Court and therefore, he submits, it is clear that the Family Court, in setting out a care plan for a degree of contact with the parents, obviously contemplated that it was in the best interests of the children that that contact continue with the parents, who would therefore have to remain in the United Kingdom. The submission of Mr Jacobs is that the effect of the Secretary of State's decision not to grant leave to remain, but at the same time not to make a decision which was appealable, is that this is incompatible with the care plan and the approach of the Family Court, and that this incompatibility gives rise to an error of law.

I have considered this question very carefully. I have come to the conclusion that there is not an arguable error of law in this case. This is a case which depends upon the facts. There can be no dispute that the Secretary of State considered the facts that were before her at the time that the decision was made in November 2013. A great deal has probably happened in the two years since then. Mr Jacobs has been very careful to ensure that those facts which are not relevant to the present decision are not brought into account at this hearing, and I have deliberately refrained from asking about them.

It seems to me that Judge Kekic, and before him on paper Judge Reeds, were perfectly correct in saying that the Secretary of State had taken all appropriate matters into account when making her decision as she did in November 2013. They were correct to say the Secretary of State cannot be criticised as having made an error of law in not having made a decision to direct a removal order either then or very soon thereafter. As Sullivan LJ said in the Daley-Murdock case, each is fact sensitive.

Accordingly, I have concluded, after a great deal of thought, that this is not a case where I can grant permission to appeal from Judge Kekic's decision and order. As he said, it may well be that the circumstances are such that the proper course is for further representations to be made to the Secretary of State, but that is not a matter for me to rule on.