Ripon Akther

Ripon Akther

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children hands worldThe Administrative Court declared that a policy which does not give effect to section 55 of the Borders, Citizenship and Immigration Act 2009 is not lawful.  The excellent Amanda Weston of Tooks Chambers for the Claimants and Joanne Rothwell of No 5 CHambers for the intervener, Coram Children’s Legal Centre (CCLC), argued that where there had been findings that the removal of a child would breach his or her human rights, the SSHD’s failure to consider granting Indefinite Leave to Remain (ILR), when requested to do so, and to, instead, grant Discretionary Leave (DL) as a matter of course is wrong.

Holman J in SM & Ors v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) considered the application for Judicial Review lodged on behalf of the Claimants.  The Claimants were all children, referred to as SM, TM, SR, DB, and JD and aged between 10 and 6 years old. They are all related to each other either as siblings or as cousins (or in the case of JD as aunt/nieces/nephew). All were born in the United Kingdom at times when their respective mothers were overstayers. All have lived continuously in the UK. There are also other members of their extended family living here in the UK.

Each of the children’s/family’s appeals were allowed by an Immigration Judge under Article 8 of the ECHR.  These appeals were not challenged and the Claimants were subsequently granted 3 years DL under the DL policy, version dated 27 October 2009.  The minor Claimants had however requested that the SSHD grant them ILR.  Following the grant of DL instead, they sought to judicially review this decision arguing that if s55 had been correctly interpreted, they would qualify for a grant of ILR.

There were essentially two issues to be decided in the case:

  • Is the DL policy document and instruction capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence?  If not, the policy is unlawful, and the decisions under review, which were taken by reference to it, should be reconsidered.
  • If the policy is capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence, did the actual decision-maker fail to read and apply it correctly ? If he did fail, the decisions should also be reconsidered.

Section 55 of the Borders, Citizenship and Immigration Act 2009, which came into force on 2 November 2009, provides as follows:

55 (1) The Secretary of State must make arrangements for ensuring that –

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) …..

(2) The functions referred to in subsection (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum or nationality …; (b) …; (c) …; (d)…

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

Submissions were put forward by the Claimants and the intervener that children cannot be expected to put their personal development on hold, much less comply with the provision that there are to be continuous and uncertain applications for DL in order to regularise the children’s stay.  Also the overarching principle argued by counsel was that, where a child’s future lies in the United Kingdom then “it is clear from the outset that a child’s future is going to be in the UK and therefore ILR should have followed the SSHD’s decision.

Holman J stated that the policy itself was not compliant with s55:

In my view the effect of the language of the policy and instruction document as a whole is to preclude the decision maker from even considering an applicant, whether adult or child, as being eligible for ILR until he or she has completed at least six years of DL. The use of the word “normally” is explained by the reasons I have described and does not of itself admit of any exception or qualification in relation to children. The general words in the introduction are excluded from the consideration of the duration of leave by the clear language of the later passages.

He concluded by stating that this blanket policy of granting 3 years DL was in fact a direct contradiction of the SSHD’s policy that “every child matters”.  The decision did not take into account the fact that the required future applications for further DL would create anxiety and for example, inconvenience a child’s schooling and impede their access to healthcare.  This would, in effect, have an adverse effect on the child, even bearing in mind the continuing leave provisions under section 3C of the Immigration Act 1971.

The conclusion was as follows:

In my view the relevant 2009 Discretionary Leave policy and instruction document is unlawful. It effectively precludes case specific consideration of the welfare of the child concerned in making the discretionary decision whether to grant limited DL or ILR. Further, and contrary to the submissions of Ms Broadfoot, that is the way senior officials at the UKBA intend the policy to be applied, at all events save in an “exceptional case” which “very rarely arises if at all.” The policy and instruction fail to give proper effect to the statutory duty under section 55. Even if the policy can be read in the way contended for by Ms Broadfoot (but not by the senior official, Mr Gallagher), that is not the way in which the actual decision maker, Mr Harrison, read and applied it. He, too, would graft on a need for exceptional or compelling features.

These reasons, separately or cumulatively, render the actual decisions in the case of each claimant unlawful. I will allow the claims for judicial review and order the Secretary of State to reconsider each claim with a fresh mind and properly applying section 55.

The Court, it seems, is taking a realistic view on the impact and uncertainty faced by a minor who is granted limited leave as an acknowledgement of his or her Article 8 rights established in the UK and who will realistically and eventually be granted ILR. This is a welcome decision for minors who do not of course realise the implications of these decisions and often remain in a state of limbo for a number years before the SSHD gets round to granting either the extension of DL or, in the end, ILR.

Having said that, the decision in SM and others potentially conflicts with an earlier decision of the Administrative Court in the case of Alladin v SSHD [2013] EWHC 1406 (Admin), published on 30 April 2013.  Arguably, this decision was not premised on findings by an Immigration Judge allowing the appeal under article 8. In addition, it is also unclear which version of the policy guidance was being considered.

However it does seem that HHJ Allan Gore QC, sitting as a Deputy High Court Judge, in Alladin adopted a more conservative approach and gave much more lea-way to the SSHD’s policies and areas of discretion compared to Holman J in SM and others, who, as we’ve seen above, interpreted the remit of the s.55 duties much more widely. This conflict within the High Court will presumably call for guidance from the Court of Appeal, so there may be more on this soon!

UKBA post room

Carrying on from FM’s open season article last week, it is clear that immigration lawyers are getting a hard time of it at the moment: first it was judge bashing and now the lawyers are in the firing line. The pernicious pastime of naming and shaming the legal profession needs to stop. Fearlessness is needed for us to do our jobs properly, particularly those of us representing  or judging vulnerable migrants, a group even lower in the public’s esteem than politicians. That is made just a little bit harder where there is a risk of judgment in the kangaroo court of public opinion.

Under attack themselves, we have seen the judges in turn criticising claimants and their lawyers. What of the Home Office, though? The Chief Inspector of the UK Border Agency last week published a damning report on the UK Border Agency’s handling of old asylum cases. The report highlighted how the Home Office has mismanaged the “legacy” fiasco, of which regular blog readers will no doubt be aware. In short, in 2006 the Home Secretary promised that unresolved asylum “legacy” cases would be dealt with by July 2011 either by granting Indefinite Leave to Remain (ILR) or removing a person. There was in addition to this, a list of factors against which cases would be considered and prioritised accordingly (or not).

In his damning report, Chief Inspector John Vine said the following:

I found that the transition of work from the Case Resolution Directorate to the new Case Assurance and Audit Unit was poorly managed. The volume of the remaining work to resolve legacy cases was not anticipated by the new unit. As a result, CAAU was quickly overwhelmed by the casework and the associated high levels of correspondence from MPs, legal representatives and applicants. I have commented previously about the importance of effective governance during major business change initiatives. I was therefore disappointed to find that a lack of governance was again a contributory factor in what turned out to be an extremely disjointed and inadequately planned transfer of work. Such was the inefficiency of this operation that at one point over 150 boxes of post, including correspondence from applicants, MPs and their legal representatives, lay unopened in a room in Liverpool.

In addition Mr Vine also noted that the legacy cases were far from being concluded, stating specifically that the UKBA had resiled from their aim of concluding these cases by either granting leave or removing:

As with many of my previous inspections, I identified that customer service outcomes were poor. I found significant opportunities to improve both general correspondence handling and complaints handling.

Mr Vine also notes that the delay caused by the backlog has and is continuing to have serious repercussions for those waiting in this system.

The UK Border Agency has been caught lying to Parliament, allowing a backlog of 100,000 unopened letters to build up and dismally failing to deliver on general and case specific promises to decide cases by set deadlines. Legacy lawyers and litigants caught up in the whole shambles have long known there was arbitrary chaos behind the bland Agency assurances. Media coverage has been appropriately coruscating. The judicial response… has been tolerant and trusting in case after case.

The one case so far in which a higher court judge has found in favour of a Legacy litigant is Mohammed, in which Deputy High Court Judge Stephen Morris QC found that the failure to apply published policies in respect of promises made under Paragraph 395C was deemed unlawful. This and the new Chief Inspector report perhaps provide legal ammunition for re-opening the argument that the Legacy decisions made by the Agency are unacceptable and unlawful.

Legacy case WINS!

Ripon Akther — 

A long residence

Following on from Hakemi, the High Court has again scrutinised the leave to remain under the “Legacy” cases, and found the SSHD’s adherence to the policy wanting.

In a welcome move last Friday Mr Stephen Morris QC, sitting as Deputy High Court Judge, quashed as unlawful the decision to refuse the Claimant leave to remain without having full regard to the provisions in Chapter 53.

Mohammed v SSHD [2012] EWHC 3091 (Admin), handed down on Friday 2 November 2012, is the latest decision in which the court found the decision to refuse leave under Paragraph 395 unlawful:

“In taking the decision in the 7 February 2011 letter, the Defendant (through the caseworker in question) was required to consider not only the terms of paragraph 395C itself, but also expressly the guidance set out in Ch. 53. The Ch. 53 guidance contains specific and quite detailed provision relating to length of residence. Whilst in terms this guidance applies to all cases under paragraph 395C, it is, by definition, liable to fall for specific consideration in many if not all “legacy cases”, since such cases are necessarily cases of delay. Thus what is said in the guidance about length of residence has particular relevance in a legacy case.

The case of Hakemi was on the whole negatively received by practitioners, giving as it did “very wide discretionto the Home Office when it considered the relative weight of the factors previously listed in paragraph 395c.

Mohammed, is much more helpful to individuals in the “legacy programme” and it could have far-reaching consequences. Although Mohammed does not explicitly criticise the reasoning in Hakemi, it noticeably moves away from it in spirit, the tenor of the cases are markedly different, and one is left with the impression that Morris J was not enamoured with the deference afforded the Executive by Burton J.

Despite all the problems with the judgment in Hakemi, it did establish that continuous residence of 6 years, “all other things being equal”, could result in a grant of leave to remain.

In this case, Mohammed is a Sri Lankan woman who entered the UK in December 2001. After a convoluted immigration history, which included claiming asylum in October 2002, she came to submit further representations in September 2009. These were refused in February 2011.

The JR was a challenge against the refusal of February 2011. The Court agreed that the decision was unlawful, it noted that the decision letter failed to give any indication that, when the factors listed under paragraph 395c were considered, that the guidance in Chapter 53 of the Enforcement Instructions and Guidance (EIG) was applied.

The Court, helpfully, interpreted chapter 53.1.2 to mean that residence (not delay on the part of the Home Office) of 6 to 8 years ought to be afforded significant weight against a decision to remove, particularly in Mohammed’s case where 10 years residence was deemed a weighty factor. The Court found that in

“…the present case there is no reference in the express terms of the letter to the fact that residence of between 6 to 8 years is a significant factor or that it weighs in favour of the grant of leave to remain. All that there is the assertion of the bald fact of the Claimant’s residence of 10 years and 1 month”.

The Court quashed the decision of February 2011, in effect, because of a failure to have regard to the guidance as stated in Chapter 53 and Paragraph 395c. The Claimant’s length of residence was significant and it was therefore incumbent upon the Home Office to explain why removal was still appropriate in these circumstances.

The Court, rather elegantly, considered Rashid and applied the ratio of R(S), noting that there has been an injustice to the Claimant as paragraph 395c had been repealed on the 13th February 2012, which left her with the less generous provisions as contained within the new Paragraph 353b. Nevertheless the court observed that the SSHD should grant leave, considering as legally relevant the resulting injustice suffered by the Claimant by virtue of the flawed decision of February 2011. The court had regard to the “correction of injustice” approach as set out in other highlighted unfairness type cases.

This decision is a fair one to those applicants who have been disadvantaged in the past when the SSHD have deigned to decide individual cases.

[some additional reporting by Varun Kesar]

New Legacy judgment

Ripon Akther — 

In a spate of very significant judgments last week, the long awaited legacy case has finally come out: Hakemi v Secretary of State for the Home Department [2012] EWHC 1967 (Admin). Nicola Braganza was led by Hugh Southey QC, both of Tooks Chambers. As many suspected we are still in the dark about a lot of the issues surrounding the Legacy, only today likened by the Home Affairs Select Committee to the infamous Bermuda Triangle. Many enter, few emerge…

Nevertheless the judgment does provide us with some guidance as to the specific criteria on which applicants were being either granted or refused leave. For example, it would seem caseworkers were being asked to look at whether a person was reporting, as well as length of residence and any representations made on the applicants behalf. We are reliably informed that Free Movement’s Freedom of Information request on Legacy criteria played a small part in this aspect of the proceedings, which is nice to know.

The situation seems to be that the Legacy criteria was being looked at in the context of both Paragraph 395C as well as Chapter 53 guidance, both famously vague and leaving huge discretion to the decision maker. Nothing ad hoc about the decision making process then! Although the inconsistency argument was not run in Hakemi, there were other legal challenges to specific parts of the legacy and the challenge to Pankina type arguments. These were specifically rejected.

Burton J in dismissing the cases of all four Claimants in Hakemi stated as follows:

In order for Mr Southey to take advantage of Pankina (and in particular Pankina as clarified in New London College) he must show that, without Parliamentary scrutiny (i) there has been a change to current practice as enshrined in a rule that had received Parliamentary scrutiny and (ii) such change involved an alteration of a substantive criterion for admission or for leave to remain. Rule 395C simply sets out factors which must be considered. Chapter 53 did not affect or fetter such considerations, or change them. It gave guidance by way of a very broad spectrum for residence (in the case of a single applicant, such as the Claimants) of 4 to 8 years. I say residence, because it is quite apparent that the reference in Chapter 53.1.2 in the last bullet point of (iv) to “delay” is not to a delay for which the Defendant is responsible, e.g. by way of delaying in dealing with the initial consideration, refusal (if such it be) and appeal, but to ‘delay’ by virtue of passage of time (see further paragraph 36 below).

It is worth noting that Burton J’s approach to Pankina seems more or less exactly that of the Supreme Court in Munir [2012] UKSC 32.

Despite Hakemi, there is nothing stopping applicants from running some Legacy type arguments in the courts. For example, it is clear from Hakemi that there remains scope for those who have been in the United Kingdom for the relevant period of six years, “all things being equal”, this being the halfway point between four and eight years. Since the first three claimants fell short of the six years (from entering the country to when CRD or CAAU dismissed their case under the Legacy), they were all ineligible under the criteria and so their claims were dismissed.

However, there seems to be an exception to what might otherwise be thought of as a ‘six year rule’. If there has been deception perpetrated on the Home Office, then it looks like one cannot benefit from a grant of leave. The fourth Claimant in Hakemi had been in the United Kingdom since as long ago as 1999 but had initially claimed to be a Kosovan national when in truth he was Albanian. His case was also dismissed.

Hakemi was run as a very specific challenge to the way in which the principles of Pankina (reaffirmed last week by their Lordships in Alvi and Munir) were applied. Hakemi has highlighted just one aspect of the SSHDs policy. I’m sure there will be other ways of challenging this seemingly “transparent” policy. I am currently challenging one such aspect: failure to grant ILR rather than DLR. I doubt this is the last word on the Legacy, either from the courts or the politicians.

Is it a bird, is it a plane or…is it in fact a policy?  Now the UKBA would vigorously deny this, they would deny that there is any kind of amnesty at all.

However, the evidence would point to the contrary.

Essentially prior to July 2011 if you had claimed asylum before the 5th March 2007 and your case was regarded as “unresolved” ie there is still some action pending; you would get a response on your case. A grant of Indefinite Leave to Remain (ILR) would usually follow, or you would be removed. The majority of such decision making usually led to a grant of ILR.

Now one may well wonder what the criteria for such a grant is…and that is where we have been left slightly bemused.

There is obviously some kind of criteria in order to enable caseworkers at UKBA to either reject or accept a claim under the legacy. However, we are being asked to believe that considerations of such cases, even despite long residence (which seems to be the underlying theme) are case specific….random some may well think.

If some applicants are granted leave and other similar cases are not and inherently there is no justification does this not smack of arbitrariness? One wonders therefore whether the right hand knows what the left hand is actually doing.

What does seem to be apparent is that legal challenges in this area do now seem to be taken seriously. There are many ways to scrutinise the decision of the UKBA to refuse a case under the legacy; a refusal of ILR, delay in the consideration of case or the decision to grant Discretionary Leave (DL) rather than ILR, are just some of the legal challenges in the Administrative court at present. There is a test case due to be heard substantively at the Administrative Court on the 2nd and 3rd July. Watch this space…