SB (Jamaica) and ABD (A Minor), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 400

[2016] EWCA Civ 400Case No C2/2015/1027
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge O’Connor
Venue Strand, London, WC2A 2LLDate 22/04/2016
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE SALESSIR STANLEY BURNTON
Between
The Queen on the application ofAppellantSB (Jamaica) and ABD (a minor)AppellantSecretary of State for the Home DepartmentRespondent
Rebecca Chapman (instructed by Duncan Lewis) for AppellantBen Lask (instructed by the Government Legal Department) for RespondentHearing Hearing date: 14 April 2015
JudgmentSIR STANLEY BURNTON:Introduction
[1]This is an appeal against the decision of Upper Tribunal Judge O’Connor dismissing the Appellant’s application for judicial review of decisions of the Home Secretary dated 8 October 2013 and 8 October 2014, in which she granted the Appellant 30 months’ leave to remain under paragraph 276ADE of the Immigration Rules subject to a condition of no recourse to public funds (NRPF condition). There are formally two applicants for judicial review, SB and her daughter ABD, who was born in this country on 30 May 2011. Since ABD’s application depends entirely on that of her mother, for convenience I shall refer to SB as if she were the only Appellant.[2]In summary, the Appellant contends that the Secretary of State: i) wrongly interpreted the transitional provisions of the current Discretionary Leave (“DL”) policy: ii) arrived at an interpretation or application of the DL policy that failed to take account of the provisions of section 55 of the Borders, Citizenship and Immigration Act 2009; and iii) irrationally imposed a condition of no recourse to public funds.[3]The Appellant contends that she should have been granted DL with no restriction on recourse to public funds.[4]The Respondent disputes all these contentions.[5]The Upper Tribunal Judge rejected the Appellant’s submissions and upheld those of the Secretary of State.

The essential facts

[6]The Appellant was born in 1994. She arrived in the United Kingdom in August 2001 with 6 months’ leave as a visitor. In 2007 her father made an application for leave to remain, naming the Appellant as his dependant. There was considerable delay in the Home Secretary’s determination of this application, and it was not until 14 June 2010 that she and her father were granted 3 years’ DL.[7]On 30 May 2011, the Appellant gave birth to her daughter ABD. On 11 June 2013, an application for further leave to remain was made by solicitors on the Appellant’s behalf.[8]The Secretary of State made two decisions, dated respectively 8 October 2013 (“the October 2013 Decision”) and 8 October 2014 (“the October 2014 Decision”), in which she granted the Appellant 30 months’ leave to remain under paragraph 276ADE of the Immigration Rules (“IR”), subject to a NRPF condition. It is those decisions that are the subject of this appeal.

Discussion

[9]The thrust of the Appellant’s case is that the Secretary of State wrongly interpreted and applied the transitional provisions of her DL policy. It is therefore necessary to set out its relevant provisions and place them in context.[10]The Immigration Rules are “statements of the rules laid down by [the Secretary of State] as to the practice to be followed in the administration of [the Immigration Act 1971] for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances”: see section 3(2) of the 1971 Act. Absent any good reason not to do so, the Secretary of State must apply those Rules when making decisions whether or not to grant leave to remain. If a person qualifies for leave to remain under the Rules, he or she should in general be granted the leave required by the Rules subject to the conditions if any specified in the Rules. A departure from the Rules would require justification.[11]The Secretary of State nonetheless retains a residual discretion to allow leave to remain outside the Rules. DL, really by definition, was generally leave granted by the Secretary of State otherwise than by application of the Immigration Rules.[12]Until July 2012, the Immigration Rules did not make express provision for applications for leave to remain on Article 8 grounds. They were therefore dealt with outside the Immigration Rules, and if successful resulted in the grant of DL.[13]In July 2012 express provision was inserted into the Immigration Rules for applications made on Article 8 grounds: see in particular paragraph 276ADE and Appendix FM. It followed that the scope for the grant of DL on Article 8 grounds was much reduced: see e.g. Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, at [3]. As stated there, Article 8 claims “outside the Rules” are still possible, though the scope for their operation is reduced. Claims “outside the Rules” which are allowed following the introduction of the new Rules in July 2012 are still allowed in the exercise of the Secretary of State’s residual discretion as was DL previously, but we were told that such grants are now not designated as DL but as grants of leave “outside the Rules”. This background is relevant when one comes to construe the relevant policy on DL which is in issue on this appeal. Where DL is granted or extended, the usual position is that no NRPF condition is attached to it. But where leave “outside the Rules” is granted or leave is granted under the new Rules, the usual position is that a NRPF condition is attached, though that may itself be challenged on public law and human rights grounds.[14]The reduced scope of leave “outside the Rules”, particularly in Article 8 cases, was reflected in the amended DL policy, introduced on 24 June 2013 (“the 2013 DL policy”). The amended policy explained “the limited circumstances in which it may be appropriate to grant DL”, i.e. the particular form of leave granted in exercise of the Secretary of State’s residual discretion which had been prevalent before the introduction of the new Rules in July 2012. In the Introduction, under the heading “Key points”, it stated:
“DL is to be granted only if a case falls within the limited categories in the section below ‘Criteria for granting Discretionary Leave’. It is intended to be used sparingly. DL is granted outside the Immigration Rules. It must not be granted where a person qualifies for asylum, HP, or where there is another category within the Immigration Rules under which they qualify. From 9 July 2012 DL must not be granted for Article 8 family or private life reasons.”
[15]The policy included transitional provisions, set out in section 10. It stated: “All decisions made on Discretionary Leave on or after 9 July 2012 will be subject to the criteria set out in this guidance. … Individuals granted DL on a date prior to and including 8 July 2012 may apply to extend that leave when their period of DL expires. Decision makers must apply the following guidance. Applicants granted Discretionary Leave before 9 July 2012 Those who, before 9 July 2012, have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing 6 years continuous DL). Further leave applications from those granted up to 3 years DL before 9 July 2012 are subject to an active review. Consideration of all further leave applications will be subject to a criminality check and the application of the criminality thresholds, including in respect of cases awaiting a decision on a further period of DL on that date. See Criminality and Exclusion section above. Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision. If the circumstances remain the same and the criminality thresholds do not apply, a further period of 3 years DL should normally be granted. Decision makers must consider whether there are any circumstances that may warrant departure from the standard period of leave. See section 4.4 above. If there have been significant changes or the applicant fails to meet the criminality thresholds (see criminality and exclusion section above), the application for further leave should be refused.

Applicants granted Discretionary Leave before 9 July 2012

[16]Since the Appellant had been granted DL before 9 July 2012, the transitional provisions of the Policy fell to be applied to her. I understood the Respondent to accept that someone who had then been granted DL, and applied for further leave to remain after 24 June 2013, would be entitled to be dealt with under the policy in force before 9 July 2012 provided there had been no “significant changes” or the applicant failed to meet the criminality thresholds (which are irrelevant to the Appellant). If there have been significant changes, the application falls to be dealt with under the current Immigration Rules and the current Policy. I consider that this is a correct understanding of the Policy. The crucial question, therefore, is whether, so far as the Appellant was concerned, there had been significant changes within the meaning of the Policy when the Secretary of State made her decisions.[17]The Appellant contends that a change is only “significant” for the purposes of the Policy if it results in the applicant having no right to remain in this country, whether by reason of her Article 8 rights or otherwise.[18]I have no hesitation in rejecting this contention. Quite simply, it has no support in the wording of the Policy, and is indeed inconsistent with it. A change is “significant” if it bears upon matters relevant to the decision of the Secretary of State when she granted DL before 9 July 2012. By way of example, the fact that a child is now older than she was when she was originally granted DL, and remains a dependant of and living with her parent or parents, could not generally be significant: it would be irrelevant to the decision of the Secretary of State to grant or to refuse leave. In this case, to the contrary, there were factual changes that were manifestly significant. At the time of the original decision, the Appellant had been a child, living with and dependent on her father. Her father’s and her applications were determined outside the Rules. When in 2013 she applied for an extension of leave she was no longer a child, she had her own child, she was no longer living with her father but was living independently, and she was working. Moreover, whereas her original application fell to be considered outside the Rules, the 2013 Rules included express provision applicable to her 2013 application. Indeed, her solicitors’ letter dated 11 June 2013 applied for leave under paragraph 276ADE of the Rules and stated:
“On the basis that the requirements in paragraph 276ADE have been patently met by the applicant, we submit that the applicant is, at the very least, entitled to leave to remain on the grounds of private life in the UK for a period of 30 months.”
The Appellant’s solicitors’ letter also referred to the previous grant to her of DL and in addition sought leave in 2013 outside the Rules on the grounds of Article 8, but the first application in the letter was for leave under the Immigration Rules. The Secretary of State accepted that the Appellant was entitled to limited leave to remain under paragraph 276ADE, and I cannot see how she can be criticised for doing so.[19]The Secretary of State, in her letter of 8 October 2013, clearly described the significant change there had been in the circumstances of the Appellant since the grant of DL:
“…you were granted discretionary leave to remain in the United Kingdom, under Article 8 European Convention on Human Rights, as a dependant on your father’s application for leave to remain. From the evidence you have provided, it is clear that you are leading an independent life and are no longer dependent on your father. Therefore, after carefully reviewing your application for active review of discretionary leave, the Secretary of State is not satisfied that the grounds under which you were previously granted discretionary leave still persist and your application for further discretionary leave is refused.”
[20]The Appellant also submitted that the Secretary of State had acted unfairly in granting her limited leave to remain, whereas her father had been granted extended DL when he made his application. The short answer to this submission is that the matters relevant to the father’s application for further leave differed from those relevant to the Appellant’s. In his case, there was no significant change in his circumstances and the Secretary of State found that he did not qualify for leave to remain under the Immigration Rules. He could therefore only be granted DL. The Appellant did qualify for leave under the Immigration Rules, as her solicitors had claimed.[21]The Appellant’s second contention is that the Secretary of State’s interpretation of her Policy was in breach of her section 55 statutory duty. The section 55 duty is too well known to require its text or effect to be set out in my judgment. Again, I have no hesitation in rejecting this contention. There was no suggestion in the Appellant’s solicitors’ letter of 11 June 2013 that a grant of limited leave to remain, rather than DL, would in any way be prejudicial to the interests of the Appellant’s daughter, and it is therefore unsurprising that the section 55 duty was not referred to in the Secretary of State’s original decision. However, section 55 was addressed by the Secretary of State in her decision letter of 8 October 2014. The letter stated:
“In support of your application [for Judicial Review] you have raised the fact that you now have a child who was born to you whilst you have been resident in the United Kingdom This has been carefully considered. However you have been granted leave to remain in the United Kingdom. Therefore your situation has not changed. You are allowed to remain in the United Kingdom, your child is also allowed to remain and they will have the full benefits of being resident in the United Kingdom. Your child will be able to access education, health and social services and all of the opportunities open to a child resident in the United Kingdom. Your child will continue to live with you and continue to have the benefits of her close relationship with other family members. You will not be forbidden to work therefore you will be able to continue to support your child as can their grandparent and other family members. You have stated that because your father has and is helping to support both you and your child that their best interests have not been served by a grant of 30 months and a condition of code 1. It has been considered whether the decision to grant you leave to remain with a code 1 condition of no recourse to public funds should be changed in light of the help you receive from your family should change the decision to grant you code 1. However as previously stated you are not destitute, you have employment and also a separate place of abode. The fact that your father makes a financial contribution to your living expenses is not a sufficiently engaging argument for you to be considered destitute and therefore qualify for a change of condition code. These circumstances show that you and your family are capable of supporting yourself and your child and as such, neither you nor your child are in a situation that would be deemed to put your child in danger or risk, so as to engage Section 55 of the Borders, Citizenship and Immigration Act 2009.”
[22]In my judgment there was nothing before the Secretary of State to support the contention that the grant of limited leave to remain, rather than DL, infringed the section 55 duty. The Secretary of State’s letter of 8 October 2014 adequately explained the Secretary of State’s decision.[23]The third contention of the Appellant is that the imposition of the NRPF condition was irrational. I reject this contention also. My first reason is that no material was put before the Secretary of State to justify her departing from the normal rule on the grant of limited leave, which is to impose the condition. The Appellant’s solicitors’ application letter of 11 June 2013 stated:
“…While the applicant is currently in receipt of various benefits, she has recently secured employment; she is being supported by her family members; she is working towards furthering her education; and she aims to secure stable employment to enable her to support herself and her daughter in the future. It is hence submitted that, should she be granted further leave to remain in the UK, she would not be seeking recourse to public funds for much longer and so the interference with her rights that would result from her removal would notbe in the interests of the economic well-being of the country.”
No restriction was placed on the Appellant’s right to work.[24]The Appellant’s solicitors challenged the application of the NRPF condition in their pre-action protocol letter dated 18 December 2013. The Secretary of State addressed the condition in her supplemental decision letter dated 8 October 2014. The evidence available to the Secretary of State at the time of the October 2014 Decision consisted of the documents listed in the Appellant’s solicitors’ letter of 11 June 2013 and the pre-action letter of 18 December 2013. That evidence contained little information as to the Appellant’s financial circumstances, and what it did contain was incomplete and out of date. Whilst there was a small number of bank statements, the most recent was dated May 2013 (some 17 months out of date). Other financial evidence consisted of a single payslip dated 31 May 2013; a prepayment electricity statement for the period 9 April 2012 to 1 May 2013; a council tax bill dated 8 March 2013; and a handful of letters concerning welfare support, the most recent of which was dated 22 April 2013. No witness statement was provided by the Appellant detailing her income, savings and assets versus rent, bills and other major outgoings. This was not adequate evidence to justify the removal of the condition. To put it more appropriately, the Secretary of State was entitled rationally to consider that this evidence was not sufficient.[25]The Secretary of State addressed the NRPF condition in her 2014 Decision:
“You have now requested permission to apply for a Judicial Review of this decision because you were granted leave to remain for 30 months on code 1 conditions. Your circumstances were fully considered on your original application and within this supplementary letter. It has been explained to you that you are not entitled to a grant of code 1A conditions because you are not regarded as being destitute for the purposes of this application. As previously explained above you are now in employment and whilst you may rely on your father for extra funds this fact alone does not make you destitute for the purposes of deciding your immigration status and what code of conditions you would be entitled to. This policy is clearly explained on the document “Request for a Change of Conditions of leave granted on the basis of family or private life” which can be accessed on the internet at Gov.UK. This document also contains a form that would need to be completed for a request to change your conditions. It is open to you to apply for this remedy if you so wish. However on the evidence presented with your initial application it is considered that the decision to grant you leave to remain on code 1 condition’s was correct. … In support of your application you have raised the fact that you now have a child who was born to you whilst you have been resident in the United Kingdom This has been carefully considered. However you have been granted leave to remain in the United Kingdom. Therefore your situation has not changed. You are allowed to remain in the United Kingdom, your child is also allowed to remain and they will have the full benefits of being resident in the United Kingdom. Your child will be able to access education, health and social services and all of the opportunities open to a child resident in the United Kingdom. Your child will continue to live with you and continue to have the benefits of her close relationship with other family members. You will not be forbidden to work therefore you will be able to continue to support your child as can their grandparent and other family members. You have stated that because your father has and is helping to support both you and your child that their best interests have not been served by a grant of 30 months and a condition of code 1. It has been considered whether the decision to grant you leave to remain with a code 1 condition of no recourse to public funds should be changed in light of the help you receive from your family should change the decision to grant you code 1. However as previously stated you are not destitute, you have employment and also a separate place of abode. The fact that your father makes a financial contribution to your living expenses is not a sufficiently engaging argument for you to be considered destitute and therefore qualify for a change of condition code. These circumstances show that you and your family are capable of supporting yourself and your child and as such, neither you nor your child are in a situation that would be deemed to put your child in danger or risk, so as to engage Section 55 of the Borders, Citizenship and Immigration Act 2009.”
[26]I see no irrationality or unfairness in this decision.[27]Moreover, on 17 June 2015, four months after the Upper Tribunal judgment under appeal, the Appellant made a fresh request for removal of the NRPF condition, based on new documentary evidence. The Secretary of State responded in a reasoned decision dated 13 July 2015, refusing to remove the condition on the basis that the Appellant had not provided sufficient evidence to demonstrate that she met the criteria for eligibility. That decision is not the subject of judicial review proceedings, and is not before us. It follows that the Appellant’s challenge before us to the application of the Condition would, if successful, be limited to the period between 8 October 2013 and 13 July 2015. As it is, however, in my judgment her challenge to the application of the Condition in 2013 fails.

Conclusion

[28]In my judgment, the Upper Tribunal Judge came to the right decision. For the reasons I have given, I would dismiss this appeal. LORD JUSTICE SALES:[29]I agree.

LORD JUSTICE MOORE-BICK:

[30]I also agree.