SB & Anor, R (on the application of) v The Secretary of State for the Home Department

The first Applicant, born 6 February 1994, is the mother of the second Applicant, born 30 May 2011. I refer to the first Applicant as ‘the Applicant’ herein. The Applicant entered the United Kingdom in August 2001 as a visitor. On 14 June 2010 she was granted Discretionary Leave to Remain until 13 June 2013 - as was her father. On 11 June 2013 both of the Applicants sought leave to remain on human rights grounds and by way of a decision of 8 October 2013 the Respondent granted such leave to each of them for a period of 30 months i.e. until 8 April 2016. The Respondent imposed a condition on this leave, prohibiting the Applicants from having recourse to public funds (the “NRPF condition”).

The Respondent has given further consideration to the Applicant’s case during the course of these proceedings, concluding in a decision of 8 October 2014 that the imposition of the NRPF condition of the Applicants’ leave should be maintained.

At the core of this application is the lawfulness of (i) the Respondent’s decision of 8 October 2013 to grant Limited Leave to Remain as opposed to Discretionary Leave and (ii) her decisions of 8 October 2013 and 8 October 2014 to impose, and refuse to remove, the condition prohibiting the Applicants recourse to public funds. Upper Tribunal Judge Pitt granted permission to bring these proceedings by way of an order dated 17 July 2014.

The Respondent’s decision of 8 October 2013 states, insofar as is relevant to these proceedings:

The Respondent’s decision of 8 October 2014 reads:

The Applicants submit that the Respondent has acted unlawfully by:

On the second day of the hearing of this application Ms Chapman also submitted, for the first time, that the Respondent’s decisions were unlawful as a consequence of her failure to abide by the duties imposed on her by section 149 of the Equalities Act 2010. Having first carefully considered all of the circumstances of the case, I refused to admit this ground for consideration. This ground was not pleaded in the grounds of application and neither is it to be found in the Applicant’s skeleton argument or written submissions drawn for the purposes of the substantive hearing; indeed, the ground has not been reduced to writing at any stage. Neither, significantly, was notice given to the Respondent of the Applicant’s intention to rely on such ground.

Ms Chapman did not pursue the pleaded ground founded in Article 14 of the ECHR at the hearing and, as a consequence, I say no more about this ground herein.

Ms Chapman submits that the Respondent’s Discretionary Leave policy mandates that those persons previously granted Discretionary Leave will continue to be dealt with under the pre 9 July 2012 regime and that, as a consequence, the Applicant’s Discretionary Leave application ought to have been dealt with in accordance with the terms of such policy.

The Respondent, it was said, was obliged to grant the Applicant Discretionary Leave unless there had been a significant change in her circumstances. In the context of the Applicant’s case that could only mean where the Applicant’s removal would no longer lead to a breach of Article 8 ECHR.

Ms Chapman continued by asserting that: (i) the Applicant’s personal circumstances have not materially altered to this extent; (ii) she now has greater family and private life ties to the UK than she did in 2010 and (iii) she is also dependent on her father financially to an even greater extent than she was in 2010. The Respondent’s refusal to consider a grant of Discretionary Leave under the policy was, it was said, therefore irrational.

It was further submitted that the Respondent determined the Applicant’s application on an incorrect factual basis because, contrary to the Respondent’s statements in her decision letters, the Applicant was not granted Discretionary Leave in 2010 on the sole basis of her being her father’s dependent child; rather, she was granted leave at that time because the Respondent had delayed in determining her application of 2005 during which time she had built up significant private and family life ties in the United Kingdom.

In response, Ms McArdle submitted that the Respondent had lawfully interpreted and applied the transitional arrangements of the Discretionary Leave policy. In particular she asserted that:

On 24 June 2013 the Respondent amended her Discretionary Leave policy so as to read as follows:

The crux of the dispute between the parties is not whether the Respondent gave consideration to the Discretionary Leave policy when determining the Applicant’s application but whether she lawfully applied the transitional arrangements therein to the Applicant’s case.

Being granted Discretionary Leave as opposed to leave granted pursuant to the Immigration Rules is important to the Applicant for two reasons:

The lawfulness of the Discretionary Leave policy is not in issue. The centrepiece of Ms Chapman’s case is that the Respondent has misunderstood, and therefore misapplied, the transitional arrangements found in section 10 of the Discretionary Leave policy (“section 10”).

Persons who apply for an extension of Discretionary Leave where such leave has previously been granted to them prior to 9 July 2012 are eligible for consideration under section 10. Normally such persons will be dealt under the Discretionary Leave policy “through to settlement…”

Both parties agree that for the purposes of this application the following paragraphs of section 10 are of importance:

Ms Chapman’s primary submission is that in the context of this case it would only be permissible for the Respondent to refuse to grant an extension of Discretionary Leave if she first concluded that the Applicant’s removal would no longer lead to a breach of Article 8 of the Human Rights Convention. Given that the Applicant was granted limited leave to remain under the Immigration Rules on the basis that requiring her to leave the United Kingdom would lead to such a breach, the Respondent’s conclusion not to grant the Applicant Discretionary Leave must be irrational.

Ms McArdle submits that such an interpretation of section 10 is not warranted when the transitional arrangements are viewed in their proper context i.e. as part of the framework of reforms introduced by the Respondent in July 2012.

The approach to be taken by the courts to the meaning of policies and guidance has most recently been considered by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, a planning case, in which Lord Reed JSC (with whom all other members of the Supreme Court agreed) said:

Having considered the parties competing submissions on the issue of whether the Respondent rationally applied section 10 of the Discretionary Leave policy to the facts of the Applicant’s case, I unhesitatingly prefer those made by Ms McArdle.

First, in my view Ms Chapman’s submission as to how the phrase “significant changes” should be applied in practice is inconsistent with the ordinary and natural meaning of those words. The adjective ‘significant’ is not apt to quantify with any precision the degree of change required in an applicant’s circumstances before the Respondent can depart from the norm and refuse to grant an extension of Discretionary Leave, yet this is exactly the effect of applying the policy in the manner suggested by Ms Chapman.

I reach the same conclusion when considering the phrase ‘significant changes’ and section 10 as a whole in the wider context.

The Discretionary Leave policy covers a large range of possible scenarios in which leave may be granted to an applicant, despite that applicant not having met the requirements of the Immigration Rules. For example, Discretionary Leave may be granted where removal of an applicant would lead to a breach of Article 3 of the Human Rights Convention, where an applicant has been identified as a victim of trafficking or where it has been established that they are a refugee but are excluded from a grant of asylum for certain specified reasons. Prior to 9 July 2012 an applicant whose removal would lead to a breach of Article 8 of the Human Rights Convention would also have been granted Discretionary Leave (Footnote: ¹) .

On 9 July 2012 the Respondent introduced a package of reforms aimed at reducing the burden on the taxpayer, promoting integration and tackling abuse. The reforms were preceded by a major public consultation and they were debated at length in Parliament. After this date persons whose removal would lead to a breach of Article 8 are either granted leave pursuant to the Immigration Rules or Limited Leave Outside the Rules (LLOR), which is to be distinguished from Discretionary Leave. The reforms also made reliance on public funds by persons granted leave to remain on family or private life grounds an exception to the default position precluding such reliance.

In my view, reading the transitional arrangements in section 10 of the Discretionary Leave policy in the aforementioned context supports the interpretation advocated by Ms McArdle.

This is also the case if section 10 is considered in the context of co-existing instructions to caseworkers issued by the Respondent specifically in relation to applications made on private and family life grounds – such instructions being found in the document headed: “Immigration Directorate Instruction Family Migration: Chapter 8 Transitional Provisions: Family Members under Appendix FM of the Immigration Rules” .

Paragraph 2.3 of these instructions provide the following guidance to caseworkers (Footnote: ²) :

Although these instructions should not be construed as if they are a statute, it is readily apparent that paragraph 2.3 anticipates that a person applying for an extension of Discretionary Leave on private and family life grounds will be granted such an extension only in circumstances where they qualify for leave and their circumstances have not changed. This dual requirement does not fit easily with Ms Chapman’s submission that, in the context of a case in which an applicant has previously been granted Discretionary Leave because their removal would breach Article 8, the only change in that applicant’s circumstances significant enough to justify a departure from the norm of granting a further period of Discretionary Leave would be if that applicant’s removal would no longer lead to such a breach.

For all the reasons I give above, I reject Ms Chapman’s submission that “a change [in a persons circumstances for the purposes of section 10 of the Discretionary Leave policy] can only be significant if it is a change capable of rendering removal from the United Kingdom lawful.” (Footnote: ³)

Ms Chapman submits in the alternative that: (i) the Respondent determined the Applicant’s application on the basis of a misunderstanding of fact and (ii) her conclusions on this issue were irrational, irrespective of whether the policy should be read as she submits.

Taking these submissions in turn. In both of her decisions the Respondent considered the application on the basis that the Applicant had been granted leave in 2010 as a dependent on her father. Ms Chapman submits this was not the case and consequently that the Respondent’s decision-making process was fundamentally flawed.

Although the chronology provided by the Applicant asserts that it was in 2005 that she made the application that led to her being granted leave in 2010 I have not been provided with copies of such application, or any other evidence to support this assertion. I do, however, have before me a letter to the Respondent dated 19 April 2007 written by Duncan Lewis solicitors on behalf of the Applicant and her father. This letter focuses primarily on the Applicant’s father’s circumstances in the United Kingdom but does also refers to circumstances specific to the Applicant. The letter ends by requesting that the Respondent grant the Applicant’s father “and his dependent” (i.e. the Applicant) leave to remain in the United Kingdom. It makes no mention of an application having previously been made in 2005.

I have further been provided with an incomplete copy (8 pages) of a FLR(O) application form drawn in the Applicant’s father’s name, which is stamped as having been received by the Respondent on the 12 October 2007. Section 2 to this form identifies the Applicant as being a “Dependent included in” the application of her father.

The Secretary of State’s response to a subject access request made by the Applicant’s father revealed the following file note made by the Respondent on the Applicant’s father’s file on 15 June 2010:

Application has been outstanding for over 2 years and

No decision has been received from UKBA during that time and

They have built up significant private and family life as a result of the delay

Reference to “the Applicant” in this file note is a reference to the instant Applicant’s father. Although it is possible to infer from the file note that there were features of the instant Applicant’s case other than her dependency on her father that led to her being granted leave to remain in 2010 – the fact that this is so is far from clear.

Having viewed the Respondent’s file note in the context of the terms of the application made to the Respondent, which on the evidence before me I treat as being formed by the letter and FLR(O) of 2007, I conclude that it has not been demonstrated that the Respondent misdirected herself in fact in either the decision of 8 October 2013 or that of 8 October 2014. I find that it was open to her to proceed on the factual matrix identified within those decisions.

However, if I am wrong in this conclusion, and the Applicant’s dependency on her father was not the sole reason for her being granted Discretionary Leave in 2010, I find that the Respondent’s misdirection of fact on this issue is not a matter capable of affecting the outcome of her considerations. Even if the Applicant’s dependency on her father in 2010 was not the sole reason for her being granted Discretionary Leave at that time there can be no doubt that it was a matter of great importance in the mind of the decision maker.

I also reject Ms Chapman’s submission that because the Applicant’s dependency on her father was greater in 2013 than it was in 2010 it was irrational of the Respondent to conclude that there had been a significant change in the Applicant’s circumstances.

I was not drawn to any evidence to support the contention that once the Applicant had left her father’s household she remained dependent on him for anything other than financial support. In such circumstances I conclude that, on the basis of the evidence available to her, the Respondent did not irrationally fail to take into account a material matter i.e. the fact that the Applicant had a greater dependency on her father in 2013 than she did in 2010.

Ms Chapman’s submission, that it was perverse of the Respondent not to extend the Applicant’s Discretionary Leave having extended her father’s leave in this capacity, is equally unattractive. The evidence before me does not demonstrate that the circumstances of the Applicant and her father are comparable and the submission must fail for this reason alone.

In summary I find that the Respondent was entitled to conclude that the Applicant’s circumstances have significantly changed since 2010 and that, consequently, she was entitled to refuse to grant the Applicant a further period of Discretionary Leave.

Ms Chapman’s submissions on this issue can be summarised in the following terms: having granted the Applicants leave to remain pursuant to the Immigration Rules (i) the Respondent had a discretion as to whether to impose an NRPF condition on such leave (ii) she failed to consider the exercise of such discretion or, in the alternative (iii) if she did consider the exercise of such discretion, she failed to do so lawfully.

Ms McArdle submitted in response that the Respondent had rationally considered the exercise of her discretion in line with the terms of her published policy. In any event, the facts of the Applicant’s case as presented to the Respondent were not capable of leading to a conclusion that the Applicant was either destitute or that the “welfare of her child requires recourse to public funds” . The Applicant has not brought a challenge to the lawfulness of the Respondent’s policy.

Part 1 of the Immigration Act 1971 (“the 1971 Act”) is concerned with the regulation of entry into and stay in the United Kingdom. Section 1(2) provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and:

By section 3(1)(c) of the 1971 Act:

As referred to above, on 9 July 2012 the Respondent introduced (by HC 194) a large number of new Immigration Rules, including those relating to the grant of leave on private life (paragraph 276ADE) and family life (Appendix FM) grounds. Amongst the rules introduced by HC 194 was Paragraph 276BE:

This rule was subsequently amended on 28 July 2014 by HC 532 so as to read:

The guidance relevant to the Respondent’s consideration in the instant case of whether to impose a NRPF condition on a grant of limited leave is to be found in Part 8 of the chapter on Appendix FM of the Immigration Directorate Instructions (“RPF Guidance”) which, as of May 2013, read (Footnote: ⁴) :

Under the 5 year partner and parent routes;

As a bereaved partner;

As a fiancé(e) or proposed civil partner.

All other cases in which limited leave is granted as a partner or a parent under Appendix FM;

All cases in which leave on the grounds of private life is granted under paragraph 276BE or paragraph 276DG; and

All cases in which limited leave is granted outside the rules on the grounds of family or private life

In January 2014 the Respondent introduced guidance identifying the circumstances in which she will remove a NRPF condition imposed on an applicant’s leave; such guidance being headed: “Request for a change of conditions of leave granted on the basis of family or private life” (“2014 Guidance”).

The 2014 Guidance reproduces parts of the Respondent’s policy of October 2013 (Footnote: ⁵) and states that a NRPF condition may be removed if:

There is no dispute that the Respondent has a discretion whether or not to impose a NRPF condition on a grant a leave. The manner in which such discretion is to be exercised is informed by detailed guidance provided by the Respondent to her caseworkers – the RPF Guidance. There is a presumption that a NRPF condition will be imposed on a grant of leave made pursuant to the Immigration Rules on private or family life grounds; however, that presumption is displaced, and a NRPF condition is not imposed on a grant of leave, in circumstances where an applicant has demonstrated that they are destitute or “there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.”

The covering letter to the Applicants’ application for leave, dated 11 June 2013 and headed “Application under Article 8 of the European Convention on Human Rights” , sets out, inter alia : (i) brief details of the Applicant’s history in the United Kingdom; (ii) the fact of the second Applicant’s birth and that she is no longer in contact with her father; (iii) the Applicant’s familial connections to the UK including with her father who, at that time, provided the Applicant with fortnightly financial support;(iv) that the Applicant had recently (May 2013) taken up employment as a steward; and, (v) that the Applicant is also a student.

This letter initially requests that a further period of Discretionary Leave be granted to the Applicant. Thereafter, detailed reference is made to the Immigration Rules and paragraph 276BE of the Rules is cited. Immediately following this citation is a request that the Applicant be granted 30 months leave to remain on the basis that she meets the requirements of paragraph 276ADE of the Rules.

No reference is made within the letter either to the potential imposition of a NRPF condition on the Applicant’s leave, or to the RPF guidance. Furthermore, no submissions were advanced in the letter to the effect that there were in existence “exceptional circumstances” which would require the Applicants to be granted access to public funds.

Significantly the letter states as follows on its page eight:

Appended to the application of 11 June 2013 was, amongst other things, a tenancy agreement in the Applicant’s sole name and evidence as to her receipt of public funds in the tax years to 5 April 2013.

The Applicant’s solicitors wrote to the Respondent on 8 July 2013 in relation to the inability of the second Applicant to supply her biometrics, but made no reference therein to the Applicants’ circumstances having materially changed since the date of the application.

The Respondent’s decision of 8 October 2013 to impose a NRPF condition must be viewed in the context of the evidence and information that was before her when she made such decision. It forms no part of the Applicant’s case that the Respondent ought to have requested updated information from her prior to making the decision of 8 October 2013, nor in my view was there any requirement on the Respondent to have done so.

Despite being legally represented there was no assertion in the application letter that the Applicant should be provided with access to public funds, neither was there any identification of the circumstances it was thought would exist for the Applicants if their continued access to public funds were to be denied. Indeed, if anything can be gleaned from the application letter it is the Applicant’s belief that she would not require recourse to public funds ‘for much longer’ because she had taken up employment. It is to be recalled that the Respondent made her decision approximately three months after the date of the Applicant’s application and it was made in the absence of any further information having been provided by the Applicant regarding her claimed need to have recourse to public funds.

It is in this context that the Respondent’s decision of 8 October 2013 to prohibit the Applicant’s access to public funds must be viewed. Having considered the Respondent’s decision through the lens of the information put before her I have no hesitation in concluding that the it is one that was rationally open to her; indeed in my view it was inevitable given the terms in which the Applicant’s application was drawn.

Furthermore, in light of evidence and information put before the Respondent, I do not accept that the Respondent was required to provide anything more by way of reasoning than is to be found in her decision letter of 8 October 2013.

Ms Chapman also submits that the Respondent’s later decision of 8 October 2014 refusing to remove the NRPF condition is unlawful on ostensibly the same basis as the October 2103 was said to be unlawful. Again, I reject this submission.

In a Pre-Action Protocol (PAP) letter of 18 December 2013 the Applicants positively put the case for the first time that they ought to be provided with access to public funds. They did so initially on the basis that they should have been granted Discretionary Leave and thus, following the terms of the Discretionary Leave policy, access to public funds. This submission fails as a consequence of my conclusions on the first issue above.

The PAP letter continues by making submissions broadly in line with those made by Ms Chapman to this Tribunal.

Insofar as to the relevant factual circumstances are alluded to in the PAP, the following is stated:

In her decision of 8 October 2014 the Respondent gives consideration to exercise of her discretion to remove the NRPF condition imposed on the Applicant’s leave. When doing so she concludes that the Applicant has not demonstrated that she is destitute. This I find to be an entirely rational conclusion on the limited evidence and information made available to the Respondent. Her reasons for coming to this conclusion are clear and the Applicant is able to understand from them why the Respondent concluded as she did on this issue.

Although the Respondent does not address as a discrete issue the question of whether the NRPF condition should be removed as a consequence of the Applicant having established the existence of particularly compelling reasons relating to the welfare of the child , it is clear from reading the decision as a whole that she did so in substance. She gave consideration to all of the features of the Applicants’ circumstances relevant to this issue, and in particular she also gave consideration to issues relating to the welfare of the second Applicant, insofar as there were any, within the context of her duties under section 55 of the 2009 Act.

In any event, in my conclusion neither the Applicants’ original application nor their subsequent correspondence with the Respondent disclose any features of their circumstances capable of leading to a finding that there existed particularly compelling reasons relating to the welfare of the child such that they should be provided with access to public funds.

In summary I find, irrespective of whether the decisions of 8 October 2013 and 8 October 2014 are considered separately or together, that the Applicants have not demonstrated that the Respondent failed to lawfully consider the exercise of her discretion not to impose, or to remove, the NRPF condition. Furthermore, the conclusions reached by the Respondent in this regard were entirely rational when viewed in the context the evidence and information put before her.

Ms Chapman observed that one consequence of the Applicant being granted leave to remain pursuant to the Immigration Rules, as opposed to Discretionary Leave, is that she is now on a 10-year path to settlement and will not be eligible for Indefinite Leave to Remain under this route until 14 June 2020. Had she been granted Discretionary Leave she would have been eligible for settlement in 2016.

This extended period of stay in the United Kingdom without settlement must, it was submitted, have an adverse impact on the welfare of the second Applicant, a minor, who will have to live without access to public funds, and below the minimum level of subsistence, until settlement is granted.

It was further asserted that the Respondent failed to have any regard to her obligations under section 55 of the 2009 Act when imposing the NRPF condition on the Applicants’ leave and that, consequently, she failed in her duty to safeguard and promote the second Applicant’s welfare.

Ms Chapman additionally submitted that given: (i) the Applicant arrived in the United Kingdom aged seven; (ii) she and her father made an application for leave to remain in 2005; and, (iii) it was not until June 2010 that a decision was made in relation to such application, that the Respondent’s entire approach to the Applicant’s case is in breach of her section 55 obligation to make timely decisions in relation to children.

In response Ms McArdle asserted that:

Section 55 of the Borders, Citizenship and Immigration Act 2009, provides:

The relevant guidance introduced by the Respondent pursuant to section 55 is headed “Every Child Matters…” and amongst other things defines “Safeguarding and promoting the welfare of children” as protecting children from maltreatment, preventing impairment of children’s health or development, ensuring that children are growing up in circumstances consistent with the provision of safe and effective care and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.

In ZH (Tanzania) v SSHD [2011] UKSC 4; the Supreme Court observed that as a consequence of the introduction of section 55 :

Ms Chapman’s first submission is founded on the fact that the Applicant will not now be eligible for Indefinite Leave to Remain until 2020, whereas had she been granted Discretionary Leave she would have been eligible for settlement in 2016.

In the present case both Applicants have been granted limited leave to remain in the United Kingdom for 30 months. My attention has not been drawn to any features of their circumstances that could be said to require a longer period of leave to be granted. In particular there is an absence of evidence relating to the disadvantages that it is said will be faced by the second Applicant by reason of her, and the first Applicant, having only been granted leave for 30 months under the Immigration Rules and now being on a 10-year track to settlement.

In addition, contrary to the submissions made by Ms Chapman, the Applicants will not “effectively be barred from claiming any form of benefits” during the period prior to them being granted settlement. They will be permitted to access to public funds if they can demonstrate the existence of exceptional circumstances requiring that such access to be granted – as set out in the RPF Guidance and the January 2014 policy. This is an important safeguard protecting the welfare of the second Applicant.

In reality Ms Chapman’s first submission under this head of her grounds is ostensibly the same argument, albeit dressed up differently, as was rejected by Kenneth Parker J in NS - whose conclusions I am in full agreement with. At [59]–[62] of his judgment Kenneth Parker J found as follows:

Despite Ms Chapman’s assertions to the contrary I do not accept that the decision in NS is distinguishable on its facts and the submission that the Respondent has failed to abide by her section 55 duties by granting the Applicants limited leave to remain with a NRPF condition also fails, in my conclusion, for the same reasons that the submission in NS failed. The RPF Guidance itself caters for and protects the welfare of the child.

Turning to a consideration of the issue of whether the Respondent has given specific consideration in the instant case to her section 55 duties.

I accept Ms Chapman’s submission that the decision letter of 8 October 2013 does not reflect the fact that the Respondent gave consideration at that time to her section 55 duties, either when determining the length of the period of leave that should be granted to the Applicants or when determining whether to impose a NRPF condition of their leave.

Nevertheless, the Applicants have not identified any features of their circumstances that could be said to require a consideration of whether to grant a period of leave than longer that specified in the Rules. An Applicant who wishes to persuade the Secretary of State to grant leave for a longer period longer than that provided for in the Rules has to do more than simply point to the fact that she is, or has, a child.

Furthermore, although it was submitted on behalf of the Applicants that there would be an adverse impact on the second Applicant’s welfare if access to public funds were not granted, the evidential foundation for this submission is not even close to having been made out on the evidence put before the Respondent.

Given what I say above, even if the Respondent’s decision of 8 October 2013 was unlawful for the failure of the Respondent to consider therein her duties under section 55 of the 2009 Act, I would not grant the relief sought by the Applicants in relation to such decision.

This conclusion is further reinforced by the fact that the Respondent has now given detailed consideration to her section 55 duties in the decision of 8 October 2014. Ms Chapman submits that I should not take account of this decision because it is no more than an ex-post facto rationalisation by the Respondent of her “previously unlawful and irrational decision”. I do not accept this to be so. It is quite clear to me that the Respondent has given fresh thought to this case in October 2014 on the basis of the evidence she had before her.

In the absence of any evidence or information which called for further consideration by the Respondent of the best interests of the second Applicant I find that the considerations and reasoning on this issue set out in the 8 October 2014 decision are sufficient to discharge the Respondent’s duties under section 55.

As to the final submission made by Ms Chapman under this head i.e. that the five year delay by the Respondent in considering the application made in 2005 was in breach of her section 55 obligation to make a timely decision – I find this to be entirely misconceived.

First, even if Ms Chapman is correct in her submission, she has not established the existence of a nexus between the aforementioned breach and the decisions under challenge in the instant proceedings.

Second, in any event, the Respondent took into account the fact of the delay when granting the Applicant, and her father, Discretionary Leave in 2010. If the granting of such leave was not thought to be adequate recompense for the delay, then proceedings in this regard should have been brought at that time. Any attempt to re-open this issue now is clearly brought significantly out of time and it is not appropriate in such circumstances for me to entertain it.

For all the reasons I have given above I conclude that the Respondent has discharged her section 55 duties to the Applicants, and I reject Ms Chapman’s submissions to the contrary.

Ms Chapman asserts that the imposition of the NRPF condition on the Applicants’ leave disproportionately interferes with the second Applicant’s family and private life in the United Kingdom and is therefore in breach of Article 8 ECHR.

It is further said that the foreseeable consequence of the imposition of the NRPF condition is that the Applicants will be required to live on less than the minimum level of income considered adequate for a family to live on in the United Kingdom and that this interference is based on an arbitrary application of policy and without any consideration of the individual circumstances of the Applicant’s case. It is thus a disproportionate interference with the Applicants’ Article 8 rights.

In response to these submissions Ms McArdle largely relied upon the same points she made in response to the previous ground. She reminded the Tribunal that the Applicant has permission to work and can at any time apply for the NRPF condition to be removed. If such an application is made the Respondent will consider it in line with the published criteria, which have not been challenged as being unlawful. The imposition of an NRPF condition on those granted leave on Article 8 grounds pursuant to the Immigration Rules is legitimate in this “time of straightened economic circumstances”

The Applicants have not established on the available evidence that the imposition of the NRPF condition has led, or would lead to, an interference with any of their protected Article 8 rights.

The Applicants remain living together as a family unit and it is not contended that this situation will change as a consequence of the imposition of the NRPF condition on their leave. In such circumstances there can be no interference caused to their family life with each other.

As to the assertion that the Applicants will find themselves required to live on less than the minimum level of income considered adequate for a family entitled to be in the United Kingdom, this is entirely speculative and has no foundation in the evidence before me. Insofar as the evidence does throw light on such matters it discloses that the Applicants receive monies fortnightly from the first Applicant’s father and that the first Applicant is lawfully in employment (although Ms Chapman asserted that the Applicant is no longer in employment this is not evidenced before me). In any event the Applicants also have the safeguard of being able to apply for the NRPF condition to be removed should they meet the requirements laid down in the January 2014 policy and RPF Guidance. If such an application is made the Respondent will consider the Applicants particular circumstances against the published criteria.

If I am wrong, and the Applicants can establish on the facts that the imposition of the NRPF condition has led, or will foreseeably lead, to an interference with their protected Article 8 rights I, nevertheless, conclude that such interference is justified and proportionate given (i) the powerful public policy reasons for prohibiting recourse to public funds for those granted leave to remain on family or private life grounds (Footnote: ⁶) (ii) the fact that the Applicant has been given permission to work and (iii) the safeguards provided for in the January 2014 policy and the RPF Guidance.

For all the reasons I give above I reject the Applicants’ claims that the Respondent has (i) acted irrationally in failing to grant Discretionary Leave to remain (ii) failed to lawfully consider the exercise of her discretion under the Immigration Rules when imposing the NRPF condition (iii) failed to comply with her duties under section 55 of the Borders, Citizenship and Immigration Act 2009 or (iv) breached their protected rights under Article 8 of the Human Rights Convention.

Consequently, this application for Judicial Review is dismissed.