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

There are four members of the Claimants’ family: the father and mother (Mr and Mrs Cheung) and their two sons: Wang Tim (now aged 26) and Wang Kin (now aged 18). They are all nationals of Guyana.

The Claimants challenge a number of decisions of the Defendant whose effect is to refuse their claim for Indefinite Leave to remain in the UK. In summary the grounds of challenge are that:

The father first came to the United Kingdom on 22March 1995 on a six month visitors’ visa, and returned to Guyana on 1 June 1995.

The mother came to the United Kingdom on a 6 month visitor visa on 16 June 2000 with their two sons (Wang Tim, born on 6 June 1985, aged 15 and Wang Kin, born on 20 October 1992, then aged 7). The three of them have remained in the United Kingdom since that time. The father returned to the UK on 27 June 2000, also on a 6 month visitor visa. The family has been in the United Kingdom since June 2000 without leave.

There is evidence that, as might be expected, while in the United Kingdom all members of the family have built up relationships with friends, relatives and neighbours. The father and mother completed the English for speakers of other languages (ESOL) course in August and September 2008 respectively.

All four Claimants applied for indefinite leave to remain (ILR) in an application form dated 24 November 2008, which did not enclose the requisite fee.

It is necessary to digress from the chronology to summarise the effect of DP5/96, which I do by reference to the Judgment of Stanley Burnton LJ in Rahman, Abbassi and Munir v. SSHD [2011] EWCA Civ 814 at [6]-[14].

It was originally concerned with the criteria to be applied by immigration decision makers when considering whether enforcement action should be taken against families with children who had spent 10 years in the UK. Although expressed neutrally the application of the policy usually applied in a way which did not result in removal of families who had been living in the United Kingdom for 10 or more years.

On 24 February 1999 the Under Secretary for the Home Department gave notice of the revision of DP5/96 in a written answer. The policy was now that removal would not normally be appropriate where there were minor dependent children and families living in the United Kingdom for 7 or more years.

A policy modification statement was subsequently issued by the Home Office. So far as relevant to this case, the general and express presumption was to be that, where a child who had come to this country at an early age and had accumulated 7 years’ residence, enforcement action would not normally be taken. In effect, there was an express presumption against removal and in favour of Indefinite Leave to Remain, see A v. SSHD [2008] EWHC 2844 (Admin) at [30].

There were however cases where enforcement action and refusal of ILR status would still be appropriate. In such cases the relevant factors would include: (a) the length of residence without leave, and whether removal had been delayed by protracted representations or the parents going to ground; (b) the age of the children; (c) whether the children were conceived at a time when either of the parents had leave to remain; (d) whether the return to the parents’ country would cause extreme hardship for the children or put their health at risk; and (e) whether either parent had a history of criminal behaviour or deception.

On 9 December 2008, the Immigration Minister (Phil Woolas MP) announced the immediate withdrawal of the policy concession DP5/96 in a written parliamentary answer.

The United Kingdom Border Agency is withdrawing DP5/96, a concession which has also been referred to as the seven year child concession, as of 9 December 2008. The concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived continuously to the age of seven or over, or where, having come to the UK at an early age, they have accumulated seven years or more continuous residence. The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules.

The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the ECHR will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully.

Transitional arrangements were published by the Home Office.

From the 09 December 2008 the discretionary enforcement policy DP5/96 (also known as the Seven Year Child Concession) is formally withdrawn. All cases involving families with dependant children with long residence will now be considered under the Immigration Rules and Article 8 of the European Convention on Human Rights (ECHR) pursuant to the Human Rights Act 1998.

Transitional arrangements

There are likely to be existing cases where DP5/96 will continue to apply despite its withdrawal. These types of cases are:

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current appeal cases where the policy has already been applied (before its withdrawal) and rejected by UKBA and the appeal is either still pending with the Asylum and Immigration Tribunal (AIT) or has been allowed;

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appeal cases where the policy was not applied by UKBA (before its withdrawal) and where the AIT directs UKBA to consider DP5/96 in the context of an allowed appeal;

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cases where UKBA are challenging an allowed appeal by either the AIT or an upper Court;

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where UKBA have acknowledged in writing that they have received an application which relies on DP5/96;

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enforcement cases where UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 09 December 2008.

Examples of such circumstances are where a caseworker has already considered DP5/96 prior to its withdrawal and has written to the individual and the representative requesting further information / evidence in relation to the child's length of residence.

Any information / evidence requested will need to be submitted within 28 days of the date of request, for the policy to continue to be applied to that case. The same factors contained within the withdrawn policy will still continue to apply when considering cases under DP5/96.

From the 09 December 2008 consideration under Article 8 of the ECHR and the Immigration Rules will also be given to any outstanding further representations against removal which cite the withdrawn policy (for example pursuant to paragraph 353 of the Immigration Rules) which have not yet been considered.

The Home Office also issued instructions to staff as to how to approach removal issues when children were involved in the light of the withdrawal of DP5/96.

Coincidentally, on the same day that DP5/96 was withdrawn (9 December 2008), the Claimants’ applications were returned by the Home Office on the basis that no fee had been paid, as required under the Immigration and Nationality (Fees) Regulations 2007 (SI 2007/936). The evidence before the Court is that the failure to include a fee was the result of failure by the administrative staff in the office of the Claimant’s solicitors. It is unclear whether the firm was in funds and failed to enclose its own cheque, or whether the firm failed to ask that it be put in funds.

On 14 January 2009, two further applications were submitted with the appropriate fees. The first was on behalf of the parents and the younger son, Wang Kin, and the second was on behalf of the older son Wang Tim. There was no reference to the earlier and unsuccessful 24 November 2008 application; and it was not relied on as a basis for considering the application for leave to remain.

In Decision Letters dated 12 and 14 August 2009 the Defendant refused the 14 January applications for ILR; and these decisions are subject to challenge in these proceedings.

It is to be noted that the Defendant has made no decision to remove the family and consequently the decisions under challenge may not be appealed under s 82 of the Nationality, Immigration and Asylum Act 2002.

On 2 November 2009 the Borders, Citizenship and Immigration Act 2009 came into force. Section 55 contains a provision requiring the Defendant to discharge any immigration function,

... having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

On 10 November 2009 the Claimants filed proceedings for Judicial Review; and raised for the first time the contention that a relevant application had been made on 24 November 2008.

The Defendant’s Acknowledgment of Service was lodged on 29 December 2009. Attached to this document was a further decision dated 23 December 2009. This addressed the new issues raised in the Judicial Review Claim, and again refused the application for ILR. This too is subject to the present legal challenge. One of the central grounds of complaint is that none of the decisions, either expressly or implicitly, took any account of the best interests of the child Wang Kin.

Permission for judicial review was refused on 4 March 2010. However the Claimants’ renewed application for permission and leave was granted by McCombe J at an oral hearing on 11 August 2010, with a direction that the matter be expedited.

The matter came on for hearing before HHJ Michael Farmer QC on 12 October. The Judge reserved his Judgment and invited further written submissions in January 2011. On 9 April 2011, and before he was able to give Judgment, Judge Farmer died. It seems that the Judge had prepared a draft judgment. Ouseley J (as Judge in charge of the Administrative Court) read the draft and was satisfied that the Judge had reached a conclusion. The parties were asked whether they were content for the judgment to be handed down. They were not provided with a copy of the judgment and I have not seen it. In the event, one of the parties submitted that the legal landscape had changed significantly since the hearing and asked for the matter to be reheard. It is in this way that the matter came before me.

The Defendant’s case is that the Claimants cannot rely on DP5/96. The concession was withdrawn before they made a valid application and they cannot take advantage of the transitional provisions. Further, Article 8 has very little impact on the case. The family has been treated as a single unit and there were no particular interests of Wang Kin which required to be addressed or be given priority, either in August or December 2009 (the dates of the decision letters).

It is clear thatDP5/96 was a policy containing a presumption against the removal of a child and its parents where the child had spent 7 years or more in the UK. Although the presumption was rebuttable and was applied on a case by case basis, I accept for present purposes that the application of the policy would have resulted in ILR for the Claimants.

I do not accept that the Claimants made an application for consideration under the Policy before it was withdrawn on 9 December. Although there is no copy of the application of 24 November there is a warning on the form which was used in the 14 January 2009 applications (albeit the form applied to applications made after 27 November 2008).

Your application is invalid if you do not pay the fee in full or if you pay by any method other than those specified here.

In the body of the application there is a page to be filled in specifying the payment details.

There is no doubt or dispute that the application should have been accompanied with payment in accordance with the payment requirements, and that without the fee it was an invalid application. Regulation 21(1) of the Immigration and Nationality (Fees) Regulation 2007 provides that an application which is not accompanied by the prescribed fee is invalid.

... where an application to which these Regulations refer is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it is accompanied by that fee.

Mr Ó Ceallaigh submitted however that, even if this was so, there had been an application before the withdrawal of DP5/96 and that in the Decision Letter of 23 December 2009 the Defendant had acknowledged,

On 24 November 2008 you made an application for leave to remain outside the rules.

He argued that that this was an acknowledgement in writing that UKBA had received an application which relied on DP5/96, and engaged the 4th bullet point in the Transitional Arrangements,

Where UKBA have acknowledged in writing that they have received an application which relies on DP5/96.

Consequently, the application should have been treated as subject to the Transitional Arrangements.

I do not accept this argument. The 4th bullet point covered cases where an effective application was made and where the UKBA had acknowledged the receipt of the valid application. It did not cover an invalid application. It is not necessary to read into the bullet point the word ‘valid’, because the UKBA would not and did not acknowledge an application relying on DP5/96 where the payment requirements were not satisfied. The letter of 9 December 2008 made this clear.

For the reasons set out below, your client’s application is invalid and we are returning the application form and documents received from you.

A new application form was enclosed with the letter for completion with proper payment details.

The application of 24 November 2008 was not simply an application which would not be considered until a fee was paid; it was an invalid application. The reference in the later letter of 23 December 2009 to the document of 24 November being an ‘application’ cannot sensibly be read as an acknowledgement of the type described in the 4th bullet point in the Transitional Arrangements. The letter was dealing with an entirely new point in the context of the Judicial Review proceedings and the following sentence in the letter makes clear that the ‘application’ had been rejected on the basis that no fee was paid.

I do not regard it as irrational, unfair or perverse that transitional arrangements should apply to a valid application. The examples given in the transitional arrangements were not exclusive. They were ‘types of case’ where DP5/96 would continue to apply, see AF (Jamaica) v SSHD [2009] EWCA Civ 240, Rix LJ at [21]

... the transitional arrangements are not in any event intended to be a comprehensive statement of the continuing relevance of extant cases.

A case where a valid application had been made but not acknowledged or where, following a valid application, questions had been asked for the purposes of clarification would both be ‘extant cases’, where the policy would be likely to apply. A case where an invalid application had been made and returned cannot be properly characterised as an ‘extant case’.

I do not understand Rix LJ to have intended to identify or establish a particular category of ‘extant cases’ which came into existence before the revocation of the Policy notwithstanding that there had been no valid application; nor that there was a category of applications sufficient to trigger the Transitional Arrangements other than a valid application; nor that the Defendant had a discretion to treat an invalid application in the same way as if it were a valid application. The observation of Sullivan J in R (Forrester) v SSHD [2008] EWHC 2307 (Admin) at [16] relied on by the Claimants was not intended to be a rule of general application in such cases.

I agree with Mr Ó Ceallaigh that the omission of the fee led to a harsh result: the Claimants were not able to rely on a policy upon which they wished to rely and which favoured them. However I do not agree with his submission to the effect that there was a category of cases in which the Defendant had a broad discretion to deal with cases which might be deserving of sympathy ‘as if’ DP5/96 applied to them; or that, if the Claimants fell into an uncertain category to which the Transitional Arrangements might apply the Defendant had a discretion. Furthermore, even if there were a discretion, it is far from clear that it should have been exercised in the Claimants’ favour notwithstanding that an (ex hypothesi invalid) application had been made during the period of the existence of DP/596. On this point the policy and Article 8 arguments in favour of granting leave were not compelling.

For these reasons I have concluded that the first ground of challenge fails.

The focus of the second ground is the private life of Wang Kin who was aged 16 at the date of the August 2009 decision letters and 17 at the time of the 23 December 2009 decision letter.

Mr Ó Ceallaigh argued that where a child had spent the formative parts of his life in this country the attachments formed within the community were of considerable if not paramount importance. The starting point was the approach underlying DP5/96 as recognised by Mr John Howell QC in R (A) v. SSHD [2008] 2844 [50]

... the legitimate aim that DP5/96 pursues is protection of the interests of a child who has, over a significant period of time at a formative age, put down roots in this country from which (other than in an exceptional case) he or she should not be uprooted.

He submits that the point is reinforced by the observations of the ECtHR in Maslov v. Austria [2009] (Applic no.1638/03) at [63]

Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect ...

Among the relevant considerations will be the best interests and well-being of the child; and, in particular, the seriousness of any difficulties which the child is likely to encounter in another country, and the strength of social, cultural and family ties with the host country and with the country of destination, see Üner v. The Netherlands (Applic no. 46410/99 at [58]. As the Upper Tribunal observed in E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 315 (IAC) at [39])

Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case.

Mr Ó Ceallaigh submitted that the Decision Letters of 12 August and 23 December 2009 were cursory and failed to address the importance of the best interests and well-being of Wang Kin, which were to be given particular weight, not least since the loss of the right to remain or have his case considered under DP5/96 was due to an oversight.

As Lady Hale noted in ZH (Tanzania) (F) v. SSHD [2011] UKSC [21]-[28], the starting point is Article 3(1) of the United Nation Convention on the Rights of the Child (UNCRC) 1989.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

This principle is reflected in s.55 of the Borders, Citizenship and Immigration Act 2009 which provides that the Secretary of State must make arrangements for ensuring that her functions in relation to immigration decisions ‘are discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom’.

An administrative decision in relation to a child which is taken without having regard to the need to promote the welfare of the child and without treating the best interests of the child as a primary consideration will not be in accordance with the law for the purposes of article 8(2) of the ECHR. As Lady Hale expressed it in ZH (Tanzania) (above) at [26]:

This does not mean (as it would in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of other considerations outweighed them.

Two points may be noted at this point. First, the failure to refer s.55 of the 2009 Act or the provisions of the UNCRC will not of itself render the decision not in accordance with the law. Nor conversely will simply setting out the relevant provisions mean that the decision is in accordance with the law. The Court is concerned with the substance of the decision, rather than its form, see the presently unreported decision in AJ, SP (India) and EJ (Nigeria) v.SSHD (2011, CA).

Secondly, the obligation to act in a way which promotes the welfare of the child and treating its best interests as a primary consideration must be viewed in context. In this type of administrative decision, the decision-maker is presented with facts which must be considered against the relevant legal criteria. Having considered the factual material (which the decision-maker may or may not accept) a decision is made which must be in accordance with the law. Much will depend on the quality of the material placed before the decision-maker.

It is clear, and was accepted by the Defendant, that Wang Kin’s right to a private life (independent of his right to a family life) was engaged in this case.

Having addressed the argument that the case should be considered under DP5/96, the decision letter of 12 August 2009 considered the Article 8 rights of the family and noted the importance of proper immigration control, and that family life could continue with the four of them returning together to Guyana, the country of which they were nationals. It was noted that the two sons were in full time education and that education in Guyana might not be to the same standard, but that this was not a sufficiently exceptional reason to grant settlement in the United Kingdom. The family could reasonably be expected to adjust to living in Guyana.

At §14 of the letter there was reference to the factors set out in Paragraph 395C of the Immigration Rules. The letter said that consideration had been given to the factors set out in §395C, including (i) age, (ii) length of residence in the UK and, importantly in the context of the welfare of the child, (iii) strength of connections with the UK and (iv) personal history. There was no further reference to these matters.

In the letter of 23 December 2009 the Defendant accepted that the children may have established a private life in the United Kingdom, since they were 15 and 8 years old when they arrived. However, they had spent their ‘formative’ years in Guyana ‘and could expect to adapt to life’ there. At the time of the letter they were 24 and 17 respectively and would return to an English-speaking country and could therefore more easily reintegrate into society and enter education or the work force. It was accepted that members of the family may have formed relationships with friends while in the UK, but it was said that communication could be maintained through modern channels of communication.

The contents of the decision letter can be criticised as being insufficiently specific; but the letter was attempting to address points which were expressed generally rather than by specific reference to the position of Wang Kin. The difficulty with the Claimants’ case is that it remains unspecific. As Mr Ó Ceallaigh put it in his argument, it ‘might be’ in Wang Kin’s interest to remain in the United Kingdom. In making his argument he placed reliance on the importance of ‘the best interests of the child’ and the strength of social, cultural and personal ties with the host country; but these are very broad concepts and are open to the answer that what is intended is that this young man will leave with his parents and his elder brother (in respect of whom these arguments do not apply), having finished his secondary education and return to the country where he was born and of which he is a national. Even if his best interests were the only relevant consideration rather than the primary consideration, these are matters which are relevant to what is in his best interests and do not militate in favour of granting leave to remain. Accordingly I do not accept that there has been an interference with a relevant right to respect for private life other than in accordance with the law.

For these reasons I find the second ground of challenge also fails; and the claim must be dismissed.