Acan, R (on the application of) v Immigration Appeal Tribunal

MR JUSTICE GIBBS: This is a claim by four claimants for judicial review of a decision of the Immigration Appeal Tribunal, dated 4th April 2003, refusing the claimants leave to appeal against a decision of an adjudicator.

The claimants are in Uganda and their details are as follows: Polline Acan, a young woman born on 2nd February 1983, now aged 20; Jimmy Ojok, a young man born on 5th June 1985, aged 18; Sharon Adok, a girl born on 18th November 1987, aged 16; and, Innocent Achire, a boy born on 10th May 1989, aged 14. Their mother is in this country, and when I say "mother", it is an agreed fact that the two boys are not the biological children of the mother, and in the course of this judgment I shall refer to the mother of the children as "the sponsor". The circumstances under which all four claimants come to be referred to as the children of the sponsor will be explained in due course.

I recite first, in brief, the facts of the case so far as material to these claims, and I am indebted in relation to the facts to the summary provided in the adjudicator's decision and reasons.

The sponsor, who is called Jane Aballo, was born in Uganda on 15th June 1960. On 10th June 1994 she arrived in the United Kingdom and claimed asylum. She left behind her in Uganda the four claimants. She was then married to a man who was said to have been an officer in an organisation involved in armed rebellion against the Ugandan government and known as the Lords Resistance Army. He has since died. The sponsor too claims to have been involved with the armed group referred to and to have suffered harsh treatment and detention at the hands of the government authorities.

The circumstances relating to the claimants' family situation and that of the sponsor are as follows. The second and fourth claimants were the children of the sponsor's husband by his relationship with a woman called Miriam Arwemo. The two boys did not know that the sponsor was other than their biological mother. She undertook to raise them as part of her family and did not, and does not, wish that to be revealed to them. The sponsor's husband had had a relationship with the other woman before he met and married the sponsor. After their marriage the sponsor was unaware that her husband had started to see the woman again, but later found out that he used to meet her whenever he went back to his village to see his parents. That fact became known to the sponsor when a woman came to the house with Jimmy, one of the claimants, who was about a year old. The woman told the sponsor's husband that he was the father of the boy, and he admitted it. The woman, who was Miriam, said that she could not afford to look after the boy and the sponsor, at her husband's request, agreed to accept him as her own child. Her husband had promised that he would not see the woman again, but around 1990 he told the sponsor that he had seen her and she was again pregnant. After a while the sponsor learnt that the other woman had given birth to the boy, Innocent, but the husband was worried that the woman was spending money on drink and not looking after him properly. A few months later the husband asked the sponsor to agree to take the boy as her child, and she agreed. The sponsor had brought the children up as her own and had never revealed the facts which I have just summarised. She considered Jimmy and Innocent, the two relevant claimants, as being her own sons.

DNA tests were carried out which confirmed that of the four claimants two were and two were not the children of the sponsor. It is, however, right to say that the sponsor had already disclosed the facts which I have summarised before those DNA tests were carried out at the request of the Secretary of State.

When the sponsor came to the United Kingdom she left her children behind in Gulu, Uganda, in the care of her mother. She was distressed at having to do so and had bad nightmares and suffered from insomnia thereafter. In consequence of those difficulties she was referred to the Medical Foundation and received counselling from them over a period of several years until 1999.

Her evidence before the adjudicator, which as I understand it was not, for the purposes of these proceedings, in issue, was that the children had been left with the sponsor's mother, who by now is in her 70s. She lived in a village close to Gulu. At the time the children were left with her she had been in good health, but as time went by her health deteriorated, and by 1997 she suffered from arthritis and high blood pressure. As a consequence the sponsor's sister, Grace, took responsibility for the children and they moved to live with her in Gulu. At that time Grace was living in reasonable conditions with her husband and their five children. However, in 2000 Grace's husband died, Grace became ill, she was found to be HIV positive, and the task of looking after the claimant's four children as well as her five children became difficult, if not impossible, for her.

There is written material in the bundle providing some confirmation of the facts that I have recited and of the current situation in Uganda as it relates to the claimants. The sponsor lost contact entirely with her children when she fled Uganda. The situation was confused and difficult and she did not know what might have happened to them or how she might trace them. However, with the assistance of a woman who was able to visit Uganda and make enquiries on her behalf, she was eventually able to track down the children in Gulu where her sister lived.

The sponsor has worked in the United Kingdom since 1997. She is now employed full-time by the Royal Borough of Kingston as a carer, having started there in early 2001. Since then she has been providing financial support to her children.

Since 1999 she has been able to speak to the children on the telephone in Uganda. The sponsor was able to help out with telephone arrangements and the costs of them when her sister, Grace, found difficulty in maintaining the link.

She told the adjudicator that she had been distressed by her separation from the children for in excess of eight years and the failure of the Secretary of State to make a decision on her claim for almost six years.

I now turn briefly to the procedural history of this matter, to which I have in part already referred. The sponsor arrived in the United Kingdom and claimed asylum on 7th June 1994. After very substantial delay on the part of the Secretary of State, her claim was finally decided, and so far as asylum was concerned refused, on 15th February 2000. She was, however, granted exceptional leave to remain for four years pursuant to powers exercised by the Secretary of State outside the Immigration Rules.

Exceptional leave to remain appears to have been granted under a concession which recognised the undoubted difficulties which the Secretary of State had had in processing claims, resulting in a lengthy backlog and the delay to which I have referred. It also appears that the sponsor's employment status in the United Kingdom, namely her value as a worker in this country, was a factor in the decision.

It will be necessary to quote a large part of that decision letter, but two general points may usefully be made. The first is that the backlog concession was based on delay up to the date 27th July 1998 and the fact that her claim had been outstanding for a specified period at that time. Secondly, as will be seen, the decision involved a four-year qualifying period following which the sponsor would be eligible for "settlement". The Secretary of State has confirmed that the four-year grant of exceptional leave would usually lead to a grant of settlement, albeit there would be a refusal of settlement when there were strong reasons, for example where a person's presence in the United Kingdom was undesirable for reasons of character, conduct or associations or where they represented a threat to national security, or it was clear that a person had made false representations.

The Secretary of State's letter, so far as material, reads as follows:

It is to be noted, first, that the exceptional leave given, whilst of course limited, enabled the claimant very extensive, and indeed one might say complete, access to the services offered to citizens of this country. Secondly, it is to be noted that the four years expired a week or so ago.

However, the application by these claimants for entry clearance which led to the current proceedings was initiated well before the expiry of the four year period. On 21st July 2000 the organisation Asylum Aid applied on behalf of the claimants to upgrade their status to refugee status. That application was refused. On 30th January 2001 Asylum Aid applied on behalf of the claimants at the British High Commission in Kampala for entry clearances to join the sponsor in the United Kingdom for the purpose of family reunion. It was following that that the refusal to the sponsor of her application to upgrade to refugee status was received.

On 21st November 2001 a letter was sent from the sponsor's representatives to the Home Office regarding the outstanding application for family reunion. DNA tests were subsequently received by the Secretary of State, with the results that I have already described. The Secretary of State, having considered the claimants' applications, was not satisfied that they had applied for a purpose covered by the Immigration Rules. The sponsor, who had exceptional leave to remain in the United Kingdom until 28th January 2004, not having completed her mandatory stay, it was decided that the claimants could not join her under the Immigration Rules.

The Secretary of State carefully reviewed the application outside the Rules, but he noted that the sponsor had left the children in 1994 in the care of their grandmother and then their aunt and come to the United Kingdom without them. He noted that no application was made for them to join her until six years later, and even then it was as visitors and not for settlement to be with her permanently. It was then stated that they should apply to join her for settlement. The Secretary of State concluded that this was not primarily prompted by a need to establish family bonds. It was instead because their aunt was too preoccupied with the other children to continue looking after them any longer. He noted that the proposal at that stage was not that they should live permanently with their mother, but rather that visits to her should be facilitated. The Secretary of State was of the view that the claimants neither needed nor intended to be reunited permanently with the sponsor. For those and other reasons he was not satisfied that the facts of the case were sufficiently compassionate to justify the exercise of a discretion in relation to the claimants' status. The applications were accordingly refused.

I now come to the grounds upon which judicial review are sought. I have to an extent renumbered those grounds in a manner which I hope will be helpful in following the judgment.

It is submitted that the Secretary of State or his representative was in error in failing to apply rule 301 of the Immigration Rules 1994 to the claimants' case, and the adjudicator was in error in failing to find that the rule was applicable. The Immigration Appeal Tribunal ought to have granted leave since it was arguable that the rule applied to the claimants' current applications.

In form, the application for judicial review is a challenge to the Immigration Appeal Tribunal's decision. Thus, it would be open to this court to remit the matter to the Immigration Appeal Tribunal if it found that the claimants' contention on rule 301 was at least arguable. However, Mr Fordham, for the claimants, acknowledges that it would be more helpful to all parties if I were to decide the point definitively, since it is a point of law and this court has all the material necessary to decide it. Thus, it is agreed, as I understand it, that I should adopt that approach, rather than restrict myself to the question simply of whether the claimants' case on the matter is arguable.

This first issue is one of interpretation. A number of elements come into play: first, a consideration of the wording itself and its meaning; second, a consideration of the structure of the rules as a guide to their intention, and especially the intention of rule 301; third, a consideration of the consequences which would follow from alternative interpretations, again as a guide to what the drafters of the rules intended; fourth, a consideration of the effect, if any, of the Human Rights Act on the alternative possible interpretations.

As will appear when I come to this ground in more detail, if rule 301 does apply the claim succeeds because it is an important part of the reasoning of the adjudicator and the IAT that it does not apply. However, there are other freestanding grounds which could found a successful claim even if the first ground fails.

This ground is based on the proposition that the Secretary of State should not benefit and/or the claimants should not suffer as a result of culpable delay on the part of the Secretary of State.

The authority relied upon is the Court of Appeal decision in Shala [2003] EWCA Civ 233. The delay relied upon is: (i) the four year delay between 1994 and 1998 - 1994 being the year when the sponsor first submitted her application and 27th July 1998 being the date by which the Secretary of State acknowledged that delay in considering the applications was unreasonable; (ii) in particular the further delay until 15th February 2000 when the Secretary of State finally determined the applications.

It is said that the Secretary of State benefits and/or the applicants suffer in that the cumulative delay postpones in an unacceptable and unreasonable fashion the date at which the claimants could apply for entry clearance under the Secretary of State's relevant policy in relation to family reunion.

There was the contention, again on the basis that rule 301 did not apply, that the decision to refuse entry clearance was disproportionate, having regard to what was acknowledged to be the interference in this particular case with the claimants' Article 8 rights. The extent of and basis for this ground was explored more extensively in oral than in written argument. On one view, the ground could have been taken to involve an implicit attack on the Secretary of State's policy which underlay the decision of 15th February 2000; in particular, an attack on the four-year requirement already described. However, it is to be noted that this letter was not challenged by way of judicial review, still less was the underlying policy. Thus, Mr Fordham expressly confined his submissions on this ground to the contention that whilst the legality of the policy was not challenged, its application in this particular case was in breach of the claimants' Article 8 rights, especially having regard to the delay.

For her part, Miss Giovannetti conceded that it was open to the claimant in principle to mount a human rights challenge to the decision of the entry clearance officer refusing the applications, notwithstanding that it might be an implicit challenge on the facts of this particular case to the four-year requirement imposed by the Secretary of State.

There was also an issue reserved by Mr Fordham to take, if this case goes further to the Court of Appeal, an issue not however argued before me. It relates to a point which, as I understand it, was taken before the Court of Appeal but rejected in Mungu [2003] EWCA Civ 360. In the circumstances I say no more about that issue.

There are further issues, or at least potential issues, assuming that rule 301 applies, which the Secretary of State submits would be a bar to the success of this claim, either wholly or in part: (5) the finding that two of the four claimants are not the sponsor's children within the meaning of the rules; and (6) the finding that the four children could not be accommodated adequately without recourse to public funds.

Mr Fordham seeks to challenge both those findings.

As to ground 6, Miss Giovannetti, very fairly, does not contend that in itself this point, if it were to be the only unresolved issue preventing a successful judicial review claim, should be an obstacle to the grant of relief; rather, it is an issue that, if all else goes in the claimants' favour, should, in her submission, remain open for consideration once the case is remitted.

I turn now to the legal and statutory framework within which the case is brought.

The relevant statute is the Immigration Act 1961. Section 1(2) of that Act is relevant:

Section 3 is entitled "General provisions for regulation and control":

The rules made by the Secretary of State pursuant to section 3 and actually or potentially relevant to the present claim are the Immigration Rules 1994 (HC 395). Pursuant to section 1(4) and to section 3 of the Act they contain provisions in relation to separate and different categories of persons seeking to enter and stay in the United Kingdom for a variety of specified purposes and do not make by any means uniform provisions for each category. The categories included are Part 2, visitors; Part 3, prospective students; Part 4, au pairs and others seeking temporary work or work experience; Part 5, people seeking more permanent employment here; Part 6, people seeking to enter as businessmen self-employed, investors, writers, composers and artists; Part 7, certain other defined categories; Part 8, family members. Family members are dealt with in rules 277 to 319. One family member category is children, dealt with between rules 296 and 316C. In rather more detail, the structure of Part 8, as far as material to the present claim, is as follows.

Rules 281 to 289 provide for the grant of leave to enter "with a view to settlement" as the spouse of a person either present and settled in the United Kingdom or who is on the same occasion being admitted for settlement.

Rules 290 to 295 provide for the grant of leave to enter (and extensions of stay) as a fiancé of a person present and settled, et cetera. In the title to the rule the words "leave to enter the United Kingdom as a fiancé" are qualified by the words "ie with a view to marriage and permanent settlement in the United Kingdom".

Rules 295A to 295O, which were added by a later command paper, provide for the grant of leave to enter to an unmarried partner of a person present and settled, et cetera. Both in the title and in the rule itself the words "leave to enter" are qualified by the description "with a view to settlement".

Rule 296 onwards relates to children. In particular, rules 297 to 300 provide for the children of parents present and settled or being admitted for settlement in the United Kingdom.

Rule 297 sets out requirements in relation to indefinite leave to enter for such children. Rule 298 sets out requirements in relation to indefinite leave to remain.

The requirements include at subrule (i) of each rule a set of circumstances, one of which must apply. I note in this context particularly the requirements set out at rule 297(i)(a), (b) and (c) and 298(i)(a). In the remainder of the relevant provisions under those subrules the circumstances relate to one parent.

I need not refer to rules 298 and 299.

Rule 301 is the rule in contention in this case. It provides as follows:

I need not refer to rule 303. Rule 303A provides for the requirements to be met by a person seeking limited leave to enter the United Kingdom as the child of a fiancé and 303B-F make further provisions relating to such a person.

I need not refer to rules 304 to 309.

Rules 310 to 315 deal with the position of adoptive children. Rules 310 to 313 deal with the requirements for indefinite leave for such children, and 314 to 316A deal with the requirements for limited leave.

The provisions regarding adoptive children have been raised as of arguable relevance to the claim. There is now an extended definition of adoption inserted by a command paper (HC 538) into the Immigration Rules. This took effect on 1st April 2003 and, so far as is material, provides as follows:

It is common ground that the claimants who are not the biological children of the sponsor do not meet those requirements.

Finally, and very importantly in relation to the law, a proposition which is accepted by both parties, namely this: the Secretary of State, in granting limited leave to remain, may exceptionally do so otherwise than under the Immigration Rules. When he does so he exercises a discretionary power independent of and separate from the Rules. That is the significance in law of the expression "exceptional leave to remain". There is an unresolved issue whether in exercising this power the Secretary of State acts outside the Act itself and in accordance with prerogative powers, or whether he acts under the statute but exercises a discretion to grant exceptional leave outside the Rules. Counsel both agree that it is not necessary for the purposes of this claim that I should decide that point.

I now turn to the submissions of the parties. I preface my summary of these submissions by saying that I am grateful to both counsel for the clarity and detail of their submissions.

Mr Fordham dealt first with the question of the interpretation of rule 301. He submitted that the claimants' interpretation involved giving the words of the rule their natural and ordinary meaning, whereas that of the Secretary State did not, and that claims to "symmetry" advanced by the Secretary of State were wrong. In summary, the claimants' argument could be put in this way: exceptional leave to remain constitutes leave; the exceptional leave in this case was for four years, it therefore could be described as limited leave; and the four-year leave constituted a qualifying period after which it was anticipated, though not guaranteed, that settlement would be allowed, thus the exceptional leave could and should be described as with a view to settlement.

Mr Fordham also relied on the fact that a person could be regarded for the purposes of the Rules as being "settled" by virtue of a decision made by the Secretary of State outside the Rules. By analogy, he submitted that a person could be here "with a view to settlement" by virtue of a leave to remain granted outside the Rules, as in this case.

He made submissions with regard to a case of Somasundaram [1990] Imm AR 16. This was a case relied upon by the Secretary of State as indicating that exceptional leave could not necessarily be regarded as with a view to settlement. Mr Fordham submitted that that case did not assist the Secretary of State; if anything, it assisted the claimants' interpretation of the rule.

Further, Mr Fordham submitted that the fact that the sponsor was not guaranteed a right of settlement was immaterial for the purposes of construing the rule. He submitted that insofar as the adjudicator relied on that proposition, she was plainly wrong, as was the Immigration Appeal Tribunal in its reliance upon that matter in refusing leave.

Mr Fordham addressed the Secretary of State's argument that in the context of interpretation of the Rules, a "limited leave with a view to settlement" must itself have been granted under Part 8 of the Rules. He submitted that there was no reason for that limitation; that it involved treating Part 8 as a sealed set of provisions, which for reasons he had already submitted it could not be so regarded. It also involved treating the provisions of Part 8 which dealt with children joining connected adults as being subservient to the provisions concerning partners joining other adults. He submitted that those provisions were not subservient. He submitted that any interpretation other than the claimants' would involve giving the words a meaning inconsistent with their ordinary and natural meaning.

He relied on the fact that there was no express indication in rule 301 that it was supposed to refer back to particular numbered previous rules.

He argued that the submission of the Secretary of State based on symmetry was of limited use. There were aspects of the treatment of children within the Rules which could be described as assymetrical.

He also submitted that it was unjust that children of parents with exceptional leave to remain were treated less favourably than children of much more temporary categories of parents expressly provided for under the Rules.

On the matter of the Human Rights Act and the European Convention on Human Rights Mr Fordham relied on Article 14. He submitted that since Article 8, which deals with family life, was clearly in play in the case, the Article 14 guarantee of non-discrimination was engaged. He submitted that the Secretary of State's treatment of these claimants under the provisions of the sponsor's exceptional leave to remain was discriminatory when compared to the treatment of other categories of children within the Rules. He submitted that the Secretary of State had failed to establish an objective justification for the difference in treatment, as he was required to do.

On the second ground, based on the case of Shala, Mr Fordham referred to the fact that it was common ground that there was a legal duty on the immigration appeal authorities not to uphold a refusal which was disproportionate by reference to Article 8. He submitted that the issue of proportionality should have included the principle that the Secretary of State should not benefit from his own unreasonable delays so as to place a person in a detrimental position. Consideration of that issue should involve reconstructing what the position would have been but for the delay, to examine the extent of the detrimental effect.

He submitted to the court that this was the process approved by the Court of Appeal in the case of Shala when it came to a decision on the facts of that case favourable to the claimant.

He submitted that whilst the facts in Shala were admittedly different from those in this case, there was no reason why the same principle should not apply. Accordingly, he argued that if leave to the sponsor to remain with a view to settlement had been granted with reasonable promptness, then the decision on the claimants' entry would have been also considered promptly. The whole of the delay, not just that since July 1998, should be taken into account.

He submitted that when the effect of the lengthy period of delay was set against the provisions of Article 8, and the claimants' right to family life, the decision of the adjudicator is seen to have been arguably wrong. Thus the refusal of leave by the Immigration Appeal Tribunal should be quashed and the argument under ground 3 (to which I shall come in a moment) on proportionality should prevail.

As to the meaning of the word "parent", Mr Fordham submitted that the definition of "parent" which is contained in rule 6 was an inclusive rather than an exhaustive one. He pointed out that the drafter had used the word "includes". He referred to the fact that the Secretary of State did not dispute that in an appropriate case a factual evaluation of the existence of family life was required.

He referred to the case of Attafuah, Immigration Appeal Tribunal 7th January 2003, [2002] UK IAT 05922 as supporting the proposition that Article 8 recognised the family life of a de facto parent. It is right to say that Miss Giovannetti did not dispute that proposition.

Mr Fordham also relied on the case of Kroon v The Netherlands 19 EHRR 263. He submitted that in the light of those decisions and of the Human Rights Act the position of the two children of whom the sponsor is not the biological mother should be equivalent to that of the natural children.

I now turn to the submissions made on behalf of the Secretary of State.

On the first issue Miss Giovannetti disputed that the sponsor had been given limited leave to enter "with a view to settlement" within the meaning of paragraph 301 of the Immigration Rules. She submitted that the tribunal was right in holding that the rule did not apply. She submitted that the quoted phrase was a reference back to paragraphs 281 and 282 and paragraphs 295A and 295B, where the expression "with a view to settlement" was specifically used.

She submitted that rule 301, on a proper construction of the Rules as a whole, was a provision enabling persons referred to in the previous rules to be accompanied or joined by their children. She submitted that the language and scheme of the Rules supported that interpretation. She said that it avoided a number of anomalous results which would result from the claimants' suggested interpretation.

She pointed out that the expression "with a view to settlement" was only used in the course of the Rules in the provisions identified. She submitted that although the Rules covered a number of circumstances where it was clearly envisaged that leave to enter was likely to lead to settlement, the specific phrase "with a view to settlement" was not used. She submitted that the proper view was that the phrase was to be used as a term of art, meaning something more specific than simply "where settlement was likely to result".

She made a number of submissions in relation to the Part 8 provisions. These included a submission that the Part 8 provisions relating to children set out in paragraphs 297 to 300 were analogous to those relating to spouses, fiances and unmarried partners in that they dealt with the position of children as "primary applicants", as she put it, but she went on to suggest that, in contrast, paragraphs 301 to 303 made provision for the grant of leave as the child of a parent or parents given limited leave to enter or remain "with a view to settlement" ("secondary" applicants). She submitted that an examination of the scheme as a whole cast light on the proper interpretation of paragraphs 301 to 303 and led inevitably to the correctness of the Secretary of State's interpretation. She submitted that the remainder of Part 8 of the Rules was consistent with that interpretation. She supported those submissions by detailed examples taken from the Rules. She also drew the court's attention to the fact that the main textbooks dealing with this topic agreed with the interpretation advanced by the Secretary of State.

As regards the significance of the European Convention on Human Rights, Miss Giovannetti made the following submissions in summary. She said that the argument based on Article 14 was not identified in the claim form and should not be entertained. She pointed out that, in reality, the claim involved an attack on rule 301, and the argument amounted to a submission that, to achieve compliance with the Convention, there should be provision for the grant of leave to children of sponsors with exceptional leave to remain somewhere in the Immigration Rules. She submitted that their absence from the Rules could not provide a basis for suggesting any error of law on the part of the IAT in refusing leave to appeal. She said that a lacuna in the Rules did not necessarily point to a breach of the Convention, and she relied in relation to this argument on the case of In re S (Minors) (Care Order Implementation of Care Plan) [2002] WLR 720 at 740, a decision of the House of Lords. She submitted that the claimants have failed to identify any relevant ground upon which they could claim that the discrimination was based.

As regards the second ground, the point relying on Shala, Miss Giovannetti pointed out that on the facts of the present case, but for the delay, the sponsor would quite probably not have been granted exceptional leave to remain at all; given the rejection of her asylum claim, the suggestion that she would have been given leave to enter or remain in the United Kingdom at all is at best speculative.

She submitted strongly that the court should not hold that the delay following 27th July 1998 was culpable or unreasonable. She submitted that, having regard to the enormous backlog faced by the Secretary of State, the issue of a decision letter by the beginning of 1990 could be regarded as prompt, or at the very least not characterised as culpable. She pointed out that there was an absence of evidence to the contrary.

As to the third issue, namely the broader question of whether the entry clearance officer acted proportionately in refusing clearance, Miss Giovannetti, as I have already said, agreed that the court may consider this and remit the matter for re-hearing, even if it accepted the Secretary of State's arguments on rule 301. She did not, of course, agree that it was appropriate to do so, nor that the IAT should have granted leave on that ground. It would only be if the adjudicator failed to take into account that issue properly or at all that any challenge to the IAT's refusal could succeed.

As to the issue relating to the applicability of the rules to the second and fourth claimants, Miss Giovannetti made the submission that, having regard to the provisions in the Rules relating to adopted children, the interpretation sought on the claimants' behalf was unsustainable. This was a case where Rules made specific provision for the circumstances in which a de facto adoption is recognised for the purposes of the Rules. The claimants' case on this point could only be interpreted as a contention that this was an informal adoption. Since the two relevant claimants' case did not fall within the Rules, the claimants' case on that point must fail.

My findings on the numerous issues raised are as follows.

This ground is one based on an issue of construction. I accept Mr Fordham's submission that the words "limited leave with a view to settlement" are capable within their ordinary natural meaning of covering the status of the claimants' sponsor. I further agree with his submission that the reliance placed by the adjudicator on the absence of any guarantee to the sponsor of a right to settlement was misplaced, and the IAT's reliance upon it equally misplaced. It was an error to suggest that this was an aid to construction.

Miss Giovannetti did not seek to argue otherwise; nor in her written or oral argument did she stress the relevance of the case of Somasundaram. Indeed, I accept that that case concerned a case of exceptional leave to remain for a purpose other than settlement.

However, I accept the thrust of Miss Giovannetti's submissions about the structure of the Rules and the evident purpose of rule 301 within that structure. I find that it was intended to refer back to previous rules in which the use of the expression "limited leave with a view to settlement" occurred. It had a purpose intended to be secondary to those earlier rules so as to permit a child of a person within the categories earlier referred to to have limited leave to enter or remain.

I accept that the submissions made ably by Mr Fordham to the contrary were arguable. For example, there is at least one instance within the Rules of express reference back by number in a later rule to an earlier rule (see rule 197). No such reference is found in rule 301. The absence of such a reference is capable of supporting Mr Fordham's submission on rule 301. However, no distinct pattern is established and there is at least one contrary example to be found in the Rules.

A more important argument is that the use of the word "settled" in rule 297 can, as Miss Giovannetti concedes, refer to a person settled, whether by application of the Rules or the Secretary of State's discretion outside the Rules. This, on the construction contended for by the Secretary of State, would produce an arguable distinction between rule 297 and rule 301. Mr Fordham submits that this distinction would be inappropriate and unnecessary and would not exist on the claimants' construction of rule 301. However, in my judgment there is a legitimate explanation for such a distinction. The status of being settled is achieved at the end of a process contemplated by the Rules. It is an established factual situation by whatever means achieved. In contrast, the provisions in rule 301 and following, relating to leave, constitute part of a carefully constructed scheme intended, in my judgment, to flow from the particular situations contemplated by the earlier rules, 281 and 282, 295A and 295B.

For those reasons and for the further reasons advanced by Miss Giovannetti in detailed argument, I prefer the definition contended for by the Secretary of State. It is also to be noted, although this is not decisive, that the interpretation is apparently an accepted one shared by the authors of the leading textbooks on the subject, namely McDonald and Jackson & Warr.

There is, however, another aspect of this issue which touches both on the question of construction and broader issues. That is the human rights aspect of the case. I preface my findings on this area of the case by recalling that the leave granted to the sponsor was "exceptional leave to remain" (my emphasis added). It was outside the Rules and granted within the Secretary of State's discretion. That being the case, it follows that the Secretary of State was empowered to attach such limitations and conditions on the limited leave as he saw fit, subject only to the requirement of rationality, legality and compliance with the Human Rights Act. If the Rules were to be held to apply to the exercise of this discretionary power, his discretion would thereby be fettered. Further, and specifically on the facts of this case, the family reunion section of the Secretary of State's decision letter of 15th February 2000 would be inconsistent with rule 301 since, in effect, it would impose an additional condition to be met by the claimants and by the sponsor which was outside and beyond that rule.

Mr Fordham submits that the construction of rule 301 contended for by the Secretary of State would offend the principles of the Human Rights Act in that it would deprive the claimants of benefits accruing to similar categories of applicants under the Rules and amount to arbitrary and unjust discrimination.

In my judgment, however, there is no breach of the Human Rights Act involved necessarily or at all in the Secretary of State's interpretation. These claimants are not in a similar category to applicants under the Rules. Applicants under the Rules belong to specifically and strictly defined categories and are subject to strictly defined requirements within the Rules. These claimants' cases depend on the exercise of powers in relation to their sponsor outside the Rules. This situation does not infringe their Convention rights for two reasons: (a) the retention by the Secretary of State of his discretionary powers is necessary for the purposes of fair and flexible immigration control - a proposition which, as I understand it, is not disputed; and (b) the exercise of those powers is in itself open to challenge on the basis that in a particular case, or indeed in relation to the Secretary of State's policy itself, there is an infringement of the claimants' human rights.

Thus, whether or not there is an arguable lacuna or gap in the Rules in not providing for persons in the claimants' position, it does not follow that there is any breach of the claimants' human rights; nor is there any need to interpret rule 301 in any different manner in order to make it compliant with the European Convention on Human Rights.

I bear in mind of course Mr Fordham's submission, which I accept, that this case concerns rules as opposed to an Act of Parliament so that this court could disapply or strike down as unlawful any rule which was shown to be contrary to the Human Rights Act and therefore unlawful.

In the light of my finding on the construction of rule 301, I need not deal in detail with the issues in relation to the two claimants who are not the sponsor's biological children. I would simply say:

Finally, I propose to address issues 2 and 3 together. In the case of Shala, the claimant, a Kosovan, could show that, had his application been dealt with promptly, it would probably have been granted. There was, however, a culpable delay. During the period of that delay there were substantially two things which happened and which separately and together prejudiced him: first, the Secretary of State's policy changed so that when his application for asylum fell to be considered it was rejected; second, he formed a close relationship with a woman, which meant that his removal would result in a prejudice to him in terms of damage to that relationship which would not have occurred if the case had been promptly dealt with.

Each case of course depends upon its own facts, and the facts of the present case are significantly different. It does not, however, follow that delay is irrelevant in this case, but it does mean that the supposed principle in Shala cannot simply be transposed and applied to the present case. Obvious differences are (a) the delay here was not accompanied by a change in policy and (b) the culpable delay in the present case led, perhaps ironically, to an outcome which was probably more favourable in some respects than might otherwise have been expected.

It is said that this potentially more favourable result may justifiably be taken into account in relation to the four-year delay until July 1998, but does not apply to the delay thereafter until the decision letter in 1990. Mr Fordham submits that there is no excuse for that further delay, but in the light of the size of the backlog of applications which the Secretary of State had to deal with, I am unable to find that the delay between July 1998 and the sending of the letter in 2000 was in itself unreasonable.

However, even these findings do not end the matter. As I have already said, the family unit, which includes all four claimants, had and have a right to family life. In my judgment, it was, and is, appropriate to assess the extent of interference with the family life of the claimants in the light of all the circumstances. An important part of the circumstances is the delay, the responsibility for that delay and the effect on the claimants of that delay.

On the facts disclosed, the following elements emerge. In 1994 the sponsor took the difficult, and doubtless painful, decision to leave her children in Uganda. The separation was mitigated by the availability of relatives to look after them. In 1994 the sponsor could reasonably expect a decision which would either enable her to settle in the United Kingdom and within a reasonable time, certainly within three or four years, apply to have the children with her. Alternatively, she would have had her application refused and would have had to return presumably to Uganda. Either way, a substantial interruption of family life would have been inevitable, but either outcome would prospectively have enabled a resolution of the family difficulties one way or the other, several years ago. However, as a consequence of the delay in the Secretary of State's decision making, the issue of family reunion was arguably delayed until 1998 in the first instance. It is true that the option of a return to Uganda was arguably open to the sponsor, but equally it was arguably understandable that she would not take this course with her application pending and with the hope of family reunion.

Meanwhile, on the evidence the sponsor's mother became unable to look after the claimants and her sister subsequently encountered the difficulties already described. These difficulties emerged during the period of delay. By March 2000, five and a half years had passed since the application. The effect of the Secretary of State's decision at that stage was that, in the absence of exceptional circumstances, another four years would have to pass before the claimants' applications could be considered.

Of course, in one sense the sponsor could be described as at that stage as having also derived some benefit from the delay in her right to remain in the United Kingdom. Viewed from the claimants' point of view, however, it was and is arguable:

I refer finally to the part of the adjudicator's decision relevant to this issue:

In some respects it will be seen that she covered certain of the points to which I have referred. The case of Attafuah was an Article 8 case based on an entry clearance officer's refusal to admit a young man believed to be the son of a sponsor settled in the United Kingdom but a citizen of Ghana. He was not in fact the son as it turned out but had always been treated as such. The adjudicator reversed the entry clearance officer's decision to admit the son and the officer appealed. The appeal was allowed. It was held that Article 8 was engaged but the refusal of entry clearance was proportionate having regard to the interests of the state in maintaining immigration control.

Each case depends on its own facts and from the report of Attafuah there appear to be several important distinctions when compared with the present case: for example, importantly, there was in Attafuah no culpable delay on the part of the authorities. The family circumstances were also substantially different.

My conclusion is that whilst the adjudicator did consider proportionality with some care, she did not consider an important element in relation to it on the facts of this case, namely the effect of the very substantial delay, which included at least a period of culpable delay on the rights of the claimants. Whilst the case of Shala was, as I have said, very different, nevertheless the delay here was an arguably highly relevant factor to the claimants' case. It was not, in my judgment, properly taken into consideration in connection with the Article 8 claim.

It is true that the adjudicator, as she was entitled, took into account the fact that the sponsor came to the United Kingdom on her own, and she took into account that when the application for the claimants' entry to the United Kingdom was made, it was made in limited form (although the sponsor has provided a credible explanation for the latter point) - see paragraphs 9 and 24 of the decision and reasons. But, in my judgment, the adjudicator's reference to these factors does not cure the omission to have regard to the totality of the delay and its effect on the claimants' Article 8 rights, ie the interference with and lack of respect for family life.

It should be stressed, in fairness to the adjudicator, that the judgment in Shala was given on the very day of her decision and therefore not available to her. Thus, it is understandable that she did not take the factor of delay into consideration as I find it would have been appropriate to do.

I wish to emphasise, as is clear from my findings on the other issues, that I consider that the adjudicator's conclusions cannot reasonably be faulted and that her decision and reasons were generally admirably set out and logically supported.

I now come to the challenged decision, the IAT's refusal of leave. It is quite short and can conveniently be quoted in full:

The Immigration Appeal Tribunal was, in my judgment, in error when considering the question of statutory construction by taking into account that the 1998 White Paper never intended to offer a guarantee of settlement to those granted exceptional leave. That point was not relevant to the issue. Further, had I been in the position of the IAT, I would have been minded to grant leave on the construction issue since it was at least arguable and might have been said to have had a prospect of success. In the event, however, at counsel's request, I have determined that issue as a matter of law in the Secretary of State's favour and therefore will not quash the IAT's decision on that ground.

However, for reasons already given, I disagree with the IAT's view that there is no arguable point of appeal on proportionality. The IAT may be right to say that the sponsor could return to Uganda, and was entitled at least to give some weight to Attafuah, albeit that the facts were very different. However, in my judgment, it was not sufficient for the IAT to say simply that Shala does not undermine the adjudicator's assessment. It was incumbent on the IAT to consider the delay issue, which was specifically raised at paragraph 4.2 of the grounds of appeal. Had they done so, they ought, in my judgment, to have found that it offered an arguable ground of appeal with a realistic prospect of success.

I emphasise that, beyond that, I say nothing of the merits of the ground. That will be a matter for the adjudicator in due course if or when, after I have quashed the IAT's decision, it grants leave and remits the case.

I say, by way of reminder, that for reasons already given the connected issues of proportionality and delay are the only ones, in my judgment, on which the IAT should have given leave.

I note, further, the adjudicator's remarks at the conclusion of her decision:

In conclusion, I re-emphasise that no attack has been made before me or previously on the policy informing the decision of 14th February 2000, and in my view rightly not. The issue is the effect of the policy and its application upon the claimants in the particular circumstances of the case.

Throughout the claimants have been referred to collectively, save for the distinctions arising from their biological parentage. I would observe that each of their claims is in fact separate. The outcome may in all cases be the same, but in each individual case it may well be pertinent to examine the age of the claimant, his or her other plans and the degree of his or her independence in judging the proportionality of any decision in his or her case when balanced against the other relevant interests and taking into account the issue of delay.

For those reasons, the application for judicial review is granted, the decision of the IAT refusing leave is quashed and the matter is remitted for reconsideration.

MR JUSTICE GIBBS: I am conscious of the fact that my judgment has been lengthy, but I hope counsel would agree that there was a substantial number of issues to consider.

MR FORDHAM: My Lord, yes. I was going to start, on behalf of both of us and those who sit behind us, by thanking your Lordship for the care with which you have approached the issues and analysed them in your judgment.

Can I deal with the consequential matters, my Lord?

MR JUSTICE GIBBS: Yes.

MR FORDHAM: I do not know whether you have the bundle, but in terms of the relief, you have already been good enough to indicate that the claim succeeds and explained on what basis and why and that the tribunal's decision be quashed. We would invite your Lordship to order that the tribunal give leave to appeal in this case. Your Lordship has concluded that that is what they ought to have done --

MR JUSTICE GIBBS: I believe they usually do actually in these cases. I have often been told that they do, but whether that is right or not I do not know.

MR FORDHAM: My Lord, it may be that that is the practice, but the logic of your Lordship's judgment is that they ought to have given leave to appeal, there is an arguable proportionality point. It plainly needs to go back to the tribunal, but we would ask you to order that the claimants' appeal be granted permission, and that is what we were seeking in the claim form. It may be that that is agreed on behalf of the Secretary of State. There is no need for them to go back and consider arguability.

MR JUSTICE GIBBS: Miss Giovannetti, in practice I have been told more than once that that is what happens whether I order it or not.

MISS GIOVANNETTI: My Lord, I can tell you that is definitely my understanding. I have never come across a case where it has not happened and I am reluctant, on the part of the Secretary to State, to agree to a mandatory order against the tribunal, which would seem to imply that your Lordship has doubt whether they will properly apply your Lordship's judgment. The judgment could not be clearer: they should have granted leave to appeal, it was arguable. My Lord, I am sure that, in essence, nothing very much turns on it, but we would invite your Lordship simply to quash their decision. They will have to reconsider it according to law as expressed in the judgment.

MR FORDHAM: My Lord, in the circumstances where I think all three of us are agreed that the logic is that it would be appropriate for them to give leave to appeal, I think it may be enough for us all to have said that and I do not press that.

MR JUSTICE GIBBS: I think so. In the basic principle of judicial review I really have to quash their decision and send it back, and this is done on the clear understanding and basis of the judgment that I have given.

MR FORDHAM: I am very grateful. Will your Lordship next, please, gives the claimants their costs of this claim for judicial review?

MISS GIOVANNETTI: My Lord, I do not think we can sensibly resist that.

MR JUSTICE GIBBS: So be it.

MR FORDHAM: Can I please have a legal aid taxation, or whatever it is now?

MR JUSTICE GIBBS: You may, it is probably a Legal Services assessment.

MR FORDHAM: I think it is. There is one final matter I just wanted to mention to your Lordship and my learned friend. It is this. The matters on which your Lordship was invited to and has definitely ruled, and ruled against me, are plainly not open to my clients when this matter goes back to the tribunal.

MR JUSTICE GIBBS: No.

MR FORDHAM: On the other hand, it is equally obvious that I could not go off to the Court of Appeal now and seek to appeal your Lordship's reasoning in a case where the order is in my favour.

MR JUSTICE GIBBS: Yes.

MR FORDHAM: All I therefore wanted to say is that plainly our position must be reserved in relation to any argument in the Court of Appeal, should it ever become necessary.

MR JUSTICE GIBBS: Funnily enough, I had given some thought to that, because in some respects, on some issues, I have ruled against you.

MR FORDHAM: Yes.

MR JUSTICE GIBBS: But I have actually said in relation to at least one of those issues on which I ruled against you that your case was arguable.

MR FORDHAM: My Lord, yes.

MR JUSTICE GIBBS: Therefore I wondered what might flow from that. I suppose all I can say is that I note that you reserve the position.

MR FORDHAM: Yes, I think what I wanted to say, it went through my mind as well because I could have invited your Lordship to make a declaration on those issues, but we then would have had the unfortunate situation of parallel litigation in the Court of Appeal on part of the case --

MR JUSTICE GIBBS: That would not be a very good idea.

MR FORDHAM: That would be a bad idea.

MR JUSTICE GIBBS: I suppose one way that you could reserve your position is to say that, in the event of your not obtaining a satisfactory outcome either from the Secretary of State or from the remission to the tribunal, you would be minded to ask for permission to appeal against my judgment out of time.

MR FORDHAM: That is one way of doing it, and if your Lordship is willing to say liberty to apply as part of your order, that would not be saying that I am going to get an extension or I would need it, it would simply record the fact that it might be appropriate for me to have the opportunity to come back.

MR JUSTICE GIBBS: I have no trouble with that, unless Miss Giovannetti seeks to dissuade me.

MISS GIOVANNETTI: No, my Lord.

MR JUSTICE GIBBS: We will simply put "liberty to apply".

MR FORDHAM: The other way to do it, which might be even better, because on any view it depends what the Secretary of State does, that is the first thing, and then what the tribunal does, if it needs to go back to the tribunal, is the second thing, is it might be appropriate then actually, if it is necessary, to be challenging that decision, but to recognise that there are certain points, like the Mungu point in this case, which I have always reserved, I am reserving them today --

MR JUSTICE GIBBS: You could perhaps take that line, I will leave the matter entirely to you.

MR FORDHAM: And I might have to say to the Administrative Court, I cannot argue again in front of you, but if it is necessary to go further, then it can. I think those are the options. Your Lordship sees why I wanted to say that because I wanted to avoid it conceivably being said that I ought to have been pursuing these points at this stage in the Court of Appeal.

MR JUSTICE GIBBS: Yes. The other matter, really out of interest I an inquiring of counsel, is to do with the human discretionary aspect of it, rather than anything else.

MR FORDHAM: My Lord, yes.

MR JUSTICE GIBBS: Certainly it is not something that I wish to take further in the judgment. You might have noted my remarks at the end of the judgment about the cases of each claimant possibly being individual cases; that thought might be anathema, it may be regarded as a priority to keep the family group together, but two of these claimants have now really reached the age of maturity. It does seem to me at least possible that their potential entry into this country and/or the limits placed upon that entry may differ from considerations of children that are still at a dependent age.

MR FORDHAM: My Lord, I do see that and we have noted those observations. I think it would be right for me to observe that where one is looking at a question of proportionality in the context of delay, which is the thrust of where we still are, then there is a difference between saying "well, let us look at where we currently are" --

MR JUSTICE GIBBS: I accept and take that point.

MR FORDHAM: -- simply waited the four years, made our applications for entry clearance now and they would be assessed on the ages of the children now.

MR JUSTICE GIBBS: You are entitled at least to argue that you should go back to the situation when clearance was refused in the first place, and I acknowledge that, but I am simply flagging that up as a possible issue.

MR FORDHAM: I am very grateful. If I may just say this in response, one knows the reality in these situations. As at this moment this case will be quite high on the Home Office agenda, because we are here in court getting a judgment. There will be come a time when it will go back into the middle of the pile, and if the Secretary of State, while the case is in mind, is in a position, please, now that the four years have elapsed, to consider whether it really is necessary for this case to go back to the tribunal or whether there is not some just solution which he, given his discretion and the flexibility of immigration control, is prepared to afford to my clients, all I can say is that obviously that is something that we would urge and would very much welcome.

MR JUSTICE GIBBS: I am not going to pre-judge or make any observations on the merits of the case under consideration, but what I think I properly can say, and I do not suppose for one moment Miss Giovannetti would disagree with me, is that now nine and a half years have passed since the sponsor's entry into this country, dealing with the claimants' case is now, and should remain, a priority.

MR FORDHAM: My Lord, we are very grateful.

MISS GIOVANNETTI: My Lord, two points in a logically reverse order. Firstly, in response to the points about consideration of discretion now, I have just very briefly taken instructions and I think it might be sensible if I also record in court, as my learned friend's points have gone on the record, the Secretary of State would invite the claimants to put in further representations immediately, setting out in full their current circumstances and any other matters.

MR JUSTICE GIBBS: Yes, I think it is important that those details include specific individual details.

MISS GIOVANNETTI: Precisely, yes, while accepting entirely that the question of delay and the time frame is relevant, but it is not the only relevant factor and it will have to be looked at in the round.

We would ask your Lordship to direct that there be a expedited transcript of your Lordship's judgment. I know we have all done our best to keep up, but I am not at all satisfied mine is a full and accurate note. My Lord, could I ask that the Secretary of State be given a period of time to consider that, and if so advised that he be allowed to make an application for leave to appeal, maybe in writing, within seven days.

MR JUSTICE GIBBS: Yes. Let me make inquiry of the shorthand writer (Pause). I would either have ordered its expedition or given you extra time, whichever seems appropriate. I did not want to put the shorthand writer under pressure, but she assures me there is no problem about expediting the transcript and I will take that route.

MISS GIOVANNETTI: Thank you. I just want to remember that I do need to ask your Lordship for a stay while we are considering the position on appeal, so I do not forget to do that.

MR FORDHAM: Very briefly, one perfectly well understands that the Secretary of State will want to consider whether he wishes to pursue an appeal. On the other hand, we are here and we know that the basis on which the claimants succeeded is the arguable question of proportionality. It would be far better for the Secretary of State to make an application for permission to appeal if he then wishes to appeal and to make that application for permission now. My position, your Lordship will appreciate, would be to resist it.

MR JUSTICE GIBBS: I should think there might be a few respondents' grounds filed, I should imagine.

MR FORDHAM: Quite, and all the questions of interpretation that the Secretary of State has succeeded on, the arguable question of proportionality, if he does decides in due course that he wants to take that to the Court of Appeal then he ought to take that matter to the Court of Appeal. That is my position.

MR JUSTICE GIBBS: Well. I take the point, but I am prepared to grant the minor indulgence to the Secretary of State that is requested.

MISS GIOVANNETTI: Thank you, my Lord.