Suleiman, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2431 (Admin)

Case No C0/1605/2005

[2006] EWHC 2431 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 21 July 2006

Strand

London WC2

B E F O R E:

MR JUSTICE CHARLES

Between

THE QUEEN ON THE APPLICATION OF SULEIMANClaimant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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MR R KHUBBER (instructed by Messrs F Mersdith) appeared for CLAIMANT

MR J P WAITE AND MISS K VENTHAM (instructed by Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE CHARLES: This review relates to a decision under DP5/96 as amended or DP069/99 ("the policy"). There have in fact been three decision letters, the first, in December 2004. The matter first came before Collins J, who refused permission to bring proceedings by way of judicial review. In his refusal, he identified that the claimant has been found to be guilty of deception and to have made false claims. He however described the decision under attack as one that is undoubtedly harsh, particularly on the children. That refusal was made on the papers and the matter was renewed. Before the matter came before the court on the renewed hearing further representations had been made, and indeed there was a further letter written by the Secretary of State. The oral hearing took place before Silber J in November 2005. He gave permission, saying that first, the presumption in the policy that children who have been here continuously for seven years will be permitted to remain was something that he thought the decision letter under challenge did not take sufficient account of; and secondly, it was arguable in his view that the disruption would be caused to the claimant's children in the light of the decision of Moses J in Jagot is also something that the decision letter did not take sufficient account of.

[2]The decision letters before Silber J are not before me. The reason for that is, as appears from paragraph 1 of the new decision letter, the Secretary of State decided to withdraw the earlier refusal letter of 2 December 2004 and the supplementary letter of 14 November 2005 and, in the light of the grounds identified as being arguable by Silber J, reconsidered the matter and wrote a further letter dated 3 March 2006, which is the decision letter before me.

[3]The claimant has three children. She lives at present in this country with those children and her husband, who is the father of those children. The children were born in 1990, 1994 and 1997 and are respectively 15, 11 and 8. The father came to the United Kingdom in March 1994. The mother and the eldest child came to the United Kingdom on 22 April 1994. The father made a claim for asylum and at its initial stages the mother and only the eldest child were included as his dependants. The second child was born shortly after the arrival in this country.

[4]The eldest child by reference to the policy, to which I shall return, completed seven years in this country in April 2001. The second child did that in August 2001 and the third child did that in August 2004. As will be apparent from what I have already said, the second and third children were born in this country and have lived all their lives in this country. It will also be apparent from what I have said that the father, the mother and the eldest child have now been living here for 12 years. The policy

[5]I was provided with what I understand to be a version of the policy correctly set out in Butterworths. It reads as follows:

"3.1. Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed: - the length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground; - the age of the children; . - whether the children were conceived at a time when either parents had leave to remain; . - whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk; . - whether either of the parents has a history of criminal behaviour or deception. 3.2. It is important that full reasons are given making clear that each case is considered on its individual merits."

[6]The next port of call in considering the policy is the decision of Moses J (as he then was) in ex parte Jagot [2000] INLR 501 which was referred to by Silber J. As appears from paragraph 14 of that judgment, when the revised policy was introduced by the relevant minister it was stated:

"A child who has spent a substantial, formative part of life in the United Kingdom should not be uprooted without strong reason..."

The most relevant paragraphs of the judgment of Moses J for present purposes are paragraphs 31, 37 and 39. They read as follows:

"(31) Such recognition was to be given by accepting that after 7 years a child should not be uprooted where he spent the substantial and formative part of his life here without strong reason. Thus the approach of this court should be to ask whether, after rigorous examination of the underlying facts, the Secretary of State was bound to conclude that there was no strong reason for Mobin to be uprooted. (37) In terms of the policy 069/99 the question is whether the uprooting of a child from an existing family life can be justified by a strong reason. The answer will not necessarily be found solely by a conclusion that Art 8 has not been breached. There is no question in the instant case but that Mobin has an effective existing family life in this country; no questions but that he has spent the substantial and formative part of his life here. The issue is whether the disruption to the applicant's present life can be justified by a strong reason. (39) It is difficult to understand how the requirements of immigration control can play any significant part in adding to the strength of the reason for the disruption. It is inherent in policy 069/99 that there has been a breach of immigration control. Were it not so, there would be no need for this policy at all. Further, the policy contemplates that the requirements of a firm system of immigration control do not extend to the need to uproot children without strong reason. Indeed the rationale of the policy is to meet the requirements of fairness as well as firmness because, no doubt, the Secretary of State acknowledges that a system of immigration control which is unfair can never be truly effective. The policy acknowledges that the integrity of the immigration control system can be maintained even though children who have spent a substantial and formative part of their life in the UK in breach of immigration rules are permitted to stay. Once this that is accepted I cannot see how the reference to the requirements of immigration control strengthen the justification given in this case. The court is left with the fact that the Secretary of State has based his decision upon the fact that Mobin could have, in the future, an effective family life in Malawi. Accepting, as I have, that that is a rational conclusion I fail to see how it can be said to be capable of being a strong reason for disrupting or uprooting the child. The flaw in the Secretary of State's reasoning seems to me to lie in his failure to focus upon disruption and the justification for disruption. I do not accept that the Secretary of State's conclusion was within the range of reasonable responses to the question posed by the policy he had adopted, namely: whether there was strong reason to uproot this child when he had spent most of his formative life in this country. In those circumstances I shall allow the application."

[7]I pause at this point to comment on that decision. First, as I understand it, the case was not concerned with any question of abuse or misuse of the immigration process. It was therefore not dealing with the factors as set out in the policy by reference to, for example, a particularly poor immigration history. That simply was not the balance that the Secretary of State in that case was making in his decision letter which was set aside by Moses J. What Moses J helpfully does is to explain features of the policy. What he emphasises is firstly that the policy, as it indeed expressly says, creates initially a general presumption. It follows that, in setting that policy and setting that general presumption, the Secretary of State has in general terms carried out a balancing exercise between on the one hand disruption that will generally flow from a child who has been here continuously for seven years being removed from this country, against the requirements of immigration control. And the policy demonstrates that that balance looked at in general terms comes down in favour of a conclusion that the parents of those children should be given permission to remain here or, put the other way, should not be deported.

[8]Moses J then points out, by reference to the policy and to the statement I have referred to made by the minister, that what is required is a strong reason to change that general presumption and thus that general balance which is implicit and inherent in it. It is thus fair, I think, to describe the general presumption as a strong one. But in truth it seems to me that that can be misleading. What there is is a general presumption based on that general balance necessarily looked at in general terms and not in the particular terms of a particular case.

[9]I was then taken to a case called Baig

[2005] EWCA Civ 1246

. The paragraphs that seem to me to be of particular relevance in the context of this case are paragraphs 34 to 38 of the judgment of Buxton LJ, with which the other members of the court agreed. Those paragraphs read as follows:

"34. I have no hesitation in saying that on the facts of this case a rational adjudicator could reach only one conclusion when applying that policy; that is, that it should not apply to this family. He would, as I would, pay respect to the presumption. He would then have to look at factors that might indicate that enforcement action was still appropriate. In this case the factors are as follows. First, there has been long residence of both husband and wife without leave: in the wife's case it is nine years; in the husband's case, taking into account the period when he was allegedly in the United Kingdom are in the 1980s, 16 years. Secondly, the removal has been delayed, with the result that the children have acquired a starting point time of residence. It has been delayed, first, by the husband's conduct in absconding after his application in 2002, the date at which he was originally ordered to be deported. On that date Feroz was aged only five and Anoush aged only 3. It has been further delayed by the wife's conduct which, in the absence of other explanation, I can only interpret as having been deliberate in order to attempt to extend the family's stay, by starting the present proceedings in 2002. As I have said, no explanation was forthcoming as to why those proceedings were taken then, or as to what the relationship was said to be between them and the husband's judicial review proceedings. 35. I also bear in mind what I have already quoted from paragraph 20 of the adjudicator's determination, that these proceedings in relation to the asylum claim were fabricated and, in relation to the seven-year policy, had been deliberately brought only with a view to extending the family's time in the country. 36. Thirdly, neither of these children was conceived when the parents had leave to remain. 37. Fourthly, there is a history in this case of deception - deception of the immigration authorities, failure to comply with the immigration requirements of this country and, I am afraid I have to say, lack of full frankness with the appellate bodies which have considered this case before it came to this court. 37. In all these circumstances, an adjudicator could only come to one conclusion. Mr Drabble very fairly accepted that if that was this court's view the matter should not be remitted. I therefore would not remit it. I would not grant permission for this application to proceed."

To my mind, those paragraphs and earlier paragraphs in that judgment confirm the points made by Moses J and the points I have made above, that the starting point is the presumption to which, as Buxton LJ said, the decision-maker should pay respect.

[10]The reasoning in paragraphs 34 to 38, however, also clearly demonstrate that abuse of the immigration system by the relevant adults can undoubtedly be a trigger to the consideration of the point whether or not there is a strong reason to depart from the general presumption set by the policy. Further, it shows that in some circumstances the abuse of the system can be so serious as to be an overwhelming factor in the decision-making process required to determine whether or not such a strong reason exists. I pause to express a personal slight puzzlement as to the relevance of the second part of paragraph 35, namely the reference to the adjudicator's determination that the request in relation to the seven-year policy had been deliberately brought only with a view to extending the family's time in the country. It seems to me it is likely that that is inevitably going to be the case when a family asks for the policy to be applied to them.

[11]As is pointed out and accepted, each case is different, and the abuse of the system by the parents in Baig is different to that alleged against the claimant in this case and I think it can fairly be described as being worse. What it seems to me flows from the two cases, and indeed the policy itself, is that when a decision-maker is considering whether or not to disapply the general presumption in the policy, issues of degree arise in respect of the relevant factors. As is made abundantly clear in the policy, each case needs to be dealt with in its own individual circumstances and having regard to the merits and demerits of the argument and counter-argument in that case. Thus, the decision-maker, when considering whether or not to depart from the general presumption, needs to carry out a judgmental or balancing exercise in which weight is attributed to the varying competing factors against the back-drop and starting point of the general presumption and thus the general balance that that reflects.

[12]Further, I comment in respect of Baig, that it is, to my mind, a demonstration of the point that, when at the second stage of the policy, ie in determining whether or not the general presumption should be disapplied in a case,(a) it should be remembered that the general point as to an effective immigration policy has been taken into account and is inherent in the existence of the presumption, but

(b) and it seems to me that it is a relevant and important but - as the policy itself demonstrates, a particularly poor immigration history can be a factor which can lead to the presumption being disapplied. Naturally, reliance on and reference to a poor immigration history engages issues relating to the maintenance of a fair and effective immigration policy. It seems to me that at the "disapplication stage" the focus needs to be on the nature and effect of the steps taken by the relevant parent that are criticised and which are said to found in the words of the policy:

"a particularly poor immigration history, and have deliberately seriously delayed consideration of their case."

Interestingly, that is put conjunctively rather than disjunctively, although I think probably little turns on that literal point.

[13]It follows - and in part I am repeating myself because it was something I put to the parties and which they both accepted - that the first stage of the process is the acceptance of the general presumption and with it(a) the underlying balance that has been set, and

(b) with that the recognition that for this policy to be triggered it is almost inevitable that there must have been some delay or failure of the system of immigration control. The reasons for that could be very wide-reaching. They could be by reference, as is referred to in the policy, to parents going to ground. They could be by reference to delays within the relevant government department. They could be a combination of factors. A point was made to me, which I accept, that a factor within delays in respect of the processing of claims by the authorities in this country would be the need for those engaged in that activity to process fraudulent and bogus claims. Therefore the very existence of those claims is, potentially at least, a contributory factor to delay. That was a submission made to me; it is not spelt out in the decision letter.

[14]Step two is the need for the decision-maker to identify a strong or good, and in the cases it is referred to as a strong, reason to depart from the presumption and thus the general balance that underlies it. It seems to me that that triggers an in "all the circumstances approach", having regard to the relevant factors of each individual case. Therefore, as I have said, it gives rise to a weighing and judgmental exercise.

[15]In my judgment, the part of the policy which refers to factors which will be considered in all cases is not an exclusive list and could not be an exclusive list looked at in the context of the opening words of the policy, namely "whilst it is important that each individual case must be considered on its merits", and the final paragraph which is essentially to the same effect. What the policy flags up as guidance for decision-makers, and indeed those seeking an application of the general policy, are the types of factors that are likely to weigh with the decision-maker. There are a number of statutory examples in which a court is directed to take an "in all the circumstances approach", but directed to particular factors. That is what it seems to me this policy is directing the decision-maker under it to do.

[16]Thus it seems to me that it is a mistake simply to confine oneself to a specific consideration of each of the identifying factors without taking an overarching approach which has regard to all the circumstances.

[17]I was then helpfully taken to the approach that this court should take on judicial review of decisions of this type, by which I mean decisions relating to fundamental human rights. I was taken firstly to the decision of Mahmood

[2001] 1 WLR 840

. I was taken to the headnote, which reflects the most relevant parts of the judgment of Laws LJ for present purposes which are to be found in paragraphs 18 and 19. Those paragraphs read as follows:

"18. However the application of so exiguous a standard of review would in my judgment involve a failure to recognise what has become a settled principle of the common law, one which is entirely independent of our incorporation of the Convention by the Human Rights Act 1918. It is that the intensity of review in a public law case will depend on the subject matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification. In this context the following passage from the judgment of Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 has often been repeated: 'The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied... that it is beyond the range of responses open to a reasonable decision-maker. But judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.' I should also cite the following passage from the judgment of Lord Woolf MR in R v Lord Saville of Newdigate, Ex p A [2002] 1 WLR 1855, 1867, para 37: 'What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517 which is not in issue.' Finally I should refer to what was said by Lord Hope of Craighead in R v Secretary of State for the Home Department Ex p Launder [1997] 1 WLR 839, 867: 'It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the applicant in this case was the risk of an interference with the applicant's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in R v Secretary of State for the Home Department Ex p Bugdaycay [1987] AC 514 as Sir Thomas Bingham MR also recognised in Ex p Smith, at p 554H.' 19. With respect this learning shows that in a case involving human rights the second approach which I outlined at paragraph 16 as to the intensity of review is generally to be followed, leaving aside incorporation of the Convention; but that approach and the basic Wednesbury rule are by no means hermitically sealed one from the other. There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required. It is in the nature of the human condition that cases where, objectively, the individual is more gravely affected will be those where what we have come to call his fundamental rights are or are said to be put in jeopardy. In the present case, whether or not the Convention is under consideration, any reasonable person will at once recognise the right to family life, exemplified in the right of the parties to a genuine marriage to cohabit without any undue interference, as being in the nature of a fundamental right (I prefer the expression fundamental freedom)."

[18]I was also taken to the case of Daly

[2001] 2 AC 532

, a decision of the House of Lords and, in particular, to the speech of Lord Steyn which is in paragraphs 24 to 28 of that decision. Those paragraphs read as follows:

"24. My Lords, I am in complete agreement with the reasons given by Lord Bingham of Cornhill in his speech. For the reasons he gives I would also allow the appeal. Except on one narrow but important point I have nothing to add. 25. There was written and oral argument on the question whether certain observations of Lord Phillips of Worth Matravers MR in R (Mahmood) vSecretary of State for the Home Department [2001] 1 WLR 840 were correct. The context was an important immigration case involving a decision of the Secretary of State made before the Human Rights Act 1998 came into effect. The Master of the Rolls nevertheless approached the case as if the Act had been in force when the Secretary of State reached his decision. He explained the new approach to be adopted. The Master of the Rolls concluded, at p 857, para 40: 'When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. When considering the test of necessity in the relevant context, the court must take into account the European jurisprudence in accordance with section 2 of the 1998 Act.' These observations have been followed by the Court of Appeal in R (Isiko) v Secretary of State for theHome Department The Times, 20 February 2001; Court of Appeal (Civil Division) Transcript No 2272 of 2000 and by Thomas J in R (Samaroo) v Secretary of State for the Home Department (unreported) 20 December 2002. 26. The explanation of the Master of the Rolls in the first sentence of the cited passage requires clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review (Associated Provincial Picture Houses Ltd vWednesbury Corpn [1948] 1 KB 223), and in particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental rights as formulated in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554E-G per Sir Thomas Bingham MR. There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where the Convention rights are at stake. 'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.' Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] PL 671; Professor Paul Craig, Administrative Law, 4th ed (1999), pp 561-563; Professor David Feldman, 'Proportionality and the Human Rights Act 1998', essay in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138: 'the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention.' In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessarily in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. 28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, 'that the intensity of review in a public law case will depend on the subject matter in hand.' That is so even in cases involving Convention rights. In law context is everything."

The passage which I would highlight for present purposes is the passage in paragraph 27 where Lord Steyn mentions three concrete differences without suggesting that his statement is exhaustive by reference to the doctrine of proportionality. He says in permissive terms that that doctrine may require the reviewing court to assess the balance which the decision-maker has struck, and not merely whether it is within the range of rational or reasonable decisions, and also may require attention to be directed to the relevant weight accorded to interests and considerations. That is a departure from the classic public law approach. That is the passage that was highlighted to me on behalf of the claimant.

[19]Those passages are put in permissive rather than mandatory terms. However, it was not argued - and in my judgment it was correctly not argued - that this was a case in which the court was not required to take the course identified by Lord Steyn in that passage. Thus, it is appropriate for me to consider and assess the balance which the Secretary of State has struck, and that I should pay attention to the relative weight accorded to competing interests and considerations. It seems to me that that is so even though I accept that, as is stated in the decision letter, the policy is plainly an extra-statutory concession. It is described in the decision letter as being benign. It seems to me that what it is directed to, and indeed this was said when it was announced, is the position of children who have been in this country for the relevant period of time, and the effect that the enforcement of immigration control in respect of their parents would have on the lives of those children. It therefore recognises, it seems to me, something that is recognised internationally, namely that the welfare of children is an important matter.

[20]I would also, before leaving this discussion of the authorities, draw attention to the reference to the need to consider relative weight. The adjective "relative" is clearly important, it seems to me, in that context. What is not likely to be possible is any mathematical or percentage analysis. That is something that is regularly the case when considering competing factors in a judgmental exercise. However, what is needed is some assessment and description of the respective weights to be attached to competing factors. Often they will be different concepts, and the comparison is not easy. It is thus undoubtedly the case that a decision-maker has a difficult task in expressing his reasoning, and it does seem to me that, in the context of this sort of process, I should not be construing a decision letter as if they were a reserved judgments. Rather I should be considering it generously and reading it generously.

[21]I turn now to look at the asylum claims of the claimant and of the father. On her arrival in 1994, as I have already mentioned, her claim was as a dependant of the father. The father's claim was refused in September 1994. He appealed. His appeal was refused in May 1996. He sought permission to appeal further, but that permission was refused in June 1996. All of his appeal rights were exhausted by 13 July 1996. I take that date from the decision letter.

[22]The father's appeal when dealt with by the Special Adjudicator was dismissed as is set out in the claimant's skeleton argument, because although the adjudicator indicated that the account of the father was generally credible, the father did not have a well-founded fear of persecution.

[23]I pause at this stage to flag up a point raised during the course of the hearing, it is that it was confirmed to me that at no stage during the father's claim for asylum and the appeal process did he, or the mother, put in assertions made by the mother in her later claim for asylum to which I will refer later. It seems to me that this is a relevant and significant omission. It is because what the mother later asserted is very closely related to the father's claim, because what she was asserting was that after the father left she was harassed and subjected to problems, not because of her own activities but because of the activities of the father. It is therefore not a legal point. It is a point of obvious factual common sense.

[24]Whilst the father's appeal process was being considered in 2005, it is asserted on behalf of the claimant mother, and indeed the father has confirmed this, that there were some marital difficulties. In 2005 the mother made a claim for asylum not in her own name. I shall return to that later. Very shortly after the father's rights of appeal were fully exhausted, the mother issued a further application in her own name, adding the children as her dependants. I was told during the course of the hearing that removal directions had been set for the father. That is not mentioned in the decision letter, but what is shown by the timing is that, very shortly after the father's claims were exhausted, this claimant made the decision to launch her own separate claim. The natural, if not inevitable consequence of that, which is what happened, was that the deportation of the father was suspended or delayed awaiting the outcome of that claim.

[25]I pause at this stage to comment that simply looking at the timing of those events, the subject matter of the mother's claim and its correlation with the subject matter of the father's claim, that there are, in my judgment, clear indications of an abuse of the immigration system.

[26]In August 1996 it was discovered within the relevant government department that the mother had or might have made a claim in a false identity. I put it in that sense because I am not clear at what point in the history it was clear that this was the case. The relevant evidence was based on fingerprint evidence which clearly needed some form of investigation. It was investigated and in March 1997 the mother withdraw the claim that she made in a false name. It was pointed out during argument that it is possible that that investigation held up the processing of the second claim in her own name. But given the delays that occurred in any event concerning that claim, I confess that to my mind this is far from obvious; it is not in any event an assertion that is particularised in the decision letters.

[27]Between 4 March 1997 when the mother withdrew the claim in the false name until May 2002 (that is a period of 5 years) there were some chasing letters from those who were then representing the claimant. After it had been decided to treat the claimant as somebody who came from Kenya, as opposed to somebody who came from Somalia, she was considered in the context of a process relating to backlog cases that was then being operated. It was decided in 2001 that that process did not apply to the claimant.

[28]The claimant's mother's claim was refused by a letter dated 13 May 2002. Shortly thereafter, in June 2002, the mother's previous solicitors made an application under the policy but no response was received to that application. Her appeal was refused on 28 March 2003 by the adjudicator who, as is accepted in the skeleton argument, made strong adverse credibility findings, both in respect of the explanation and excuses proffered by the mother in the context of the claim made in a false name and as to the content of her claim that was then under consideration. In the detailed grounds of defence passages from that finding are highlighted. The finding merits reading in its totally. The highlighted passages read as follows, the first paragraph relating to the claim made in a false name as to which it was asserted that this was essentially all to do with a Mr Ahmed who acted on behalf of the claimant mother, she having no real knowledge of what was going on. It says:

"The documents produced by the Appellant or Mr Ahmed included an identity card with a photograph of the Appellant and were in the name Asha Bare Ismail. The Appellant was undoubtedly altering her history in an attempt to succeed in a claim for asylum. Having seen the appellant give evidence and noted the forceful manner she used to respond to questions asked in cross-examination, I do not believe that she was duped by Mr Ahmed and entirely accept the Respondent's contention that this Appellant was attempting to make a false claim for asylum and produced bogus documents in a false name in support of her claim. The Appellant has repeatedly lied in order to obtain asylum in this country. I do not believe that the Appellant arrived in the United Kingdom for the reasons she claims or under the circumstances she describes. The Appellant refers to her children and the length of time it has taken for her claim to be dealt with. That the Appellant has made repeated applications causing her claim to be delayed cannot assist her in a dishonest asylum claim. The Appellant's husband has exhausted the appeal procedure available to him following the refusal of his claim and has no independent status in the United Kingdom. The Appellant and her family will be able to return to Kenya as a family unit. The Respondent has certified the claim as a whole as vexatious. The Appellant has repeatedly chosen to lie in an attempt to mislead the Respondent. The claim is vexatious. The Appellant has not adduced any credible evidence of torture. Paragraph 9(7) does not apply. The certificate on the asylum and human rights claim is upheld."

Those are strong findings made by an adjudicator who had the benefit of hearing the claimant mother give evidence. It is clear that the claimant mother does not accept that the adjudicator got it right. There have been attempts within this process to put in evidence and information seeking to support that, and thus, for example, that she came from Somalia.

[29]On the evidence that has been put in, I see no reason why the Secretary of State or this court should revisit those findings; and indeed to my mind counsel for the claimant very properly did not make any attempt to urge me to do so. Those findings are a part of the relevant history and the factors to be considered, as is the fact that the mother continues to make assertions that were rejected by the adjudicator.

[30]What then followed was a further request for the application of the policy in respect of this family, having regard to the fact that the children had been here for over seven years. Points were raised in support of that relating to the children suffering from asthma and as to difficulties they would have with schooling if they were to move from this country. Reports have also now been obtained in respect of the youngest child from a psychologist. The first of those reports pre-dates the decision letter of March 2006. The second of those reports post-dates that decision but pre-dates the detailed grounds of defence, or at least the date on which those grounds were served. I was told, and I accept, that they were in fact drafted before the receipt of the second report. That explains why they did not mention the second report. No alteration or amendment of those grounds has been proposed in the light of the second report. Additionally, and considered in the decision letter, is a report from a teacher which to my mind carries little additional weight, if any additional weight, to the views expressed by the psychologist.

[31]Unfortunately and inappropriately in my view, the claimant saw fit to include within the bundle of documents a letter from an organisation called the Family Welfare Association. This is a short letter raising points as to distress and other matters being suffered by the oldest child and the mother. It effectively gives no details as to the reasons for those views, it gives no details as to the qualifications of the author of the letter. It makes some potentially serious assertions. It is simply inappropriate to seek to introduce matters of this kind through that sort of letter. What the letter does indicate, which I would accept as a matter of common sense, is that the dragging out of the decision-making process in the context of this claim is likely to cause some upset and distress. I shall return to that at the end of this judgment.

[32]The bases of attack to the decision are helpfully set out in the grounds and the skeleton argument on behalf of the claimant. The skeleton argument helpfully draws together the attacks that had been made to various letters over the period that has passed. I deal first with a point which disappeared. To my mind unfortunately the decision letter contained an assertion that the Secretary of State was not satisfied that the children had been continuously present for seven years in this country. The back-drop for that was two-fold. One was a rejection in respect of an application for citizenship by, as I would understand it, a different government department on the basis that that department was not satisfied as to continuous residence of the children, but without specifying any reason given by that government department. Also - the background is that this was the first time upon which this point was raised - The matters relied on were periods of time when the children were missing from their school, it being asserted by the parents that they had moved them to Manchester. However these parents had been reporting, pursuant to immigration obligations, on a regular basis throughout the relevant periods. Issues as to that and any dispute as to that has not been really covered before me. I say that unfortunate that the point as to continuous presence was raised firstly because it seems to me unfortunate that it was introduced on that factual premise this late in the exercise; second, as counsel for the claimant was about to advance his argument on it, I stopped him and asked counsel for the Secretary of State whether the point was being pursued and I was told that it was not. At that stage I was not given, I think, a reason for that indication. I was told later that there was some additional information that had come in and had caused this change to take place. I have not investigated that. I confess it seems to me that the points made on behalf of the claimant are good ones namely that the children have no travel documents, and that the prospect that these children, although missing from their school in London, were not in the United Kingdom is remote.

[33]The next ground of attack to the decision letter was that it failed properly to have regard to the general presumption. To my mind that argument is untenable and is largely based on a presentational point raised on the letter, namely, that the presumption is not mentioned until after a detailed history of the immigration history. It seems to me that it is quite plain from the opening paragraph of the letter that the decision-maker and the author of that letter had the presumption well in mind. Indeed it was one of the very points that Silber J had mentioned and which they were seeking to deal with. It is fair to say that the skeleton argument indicated that there were more important points being raised on behalf of the claimant. That is reflected in the skeleton argument where it is submitted that:

"the fundamental problem with the reasoning of the Defendant in the new decision letter is that it fails to properly evaluate the weight that should be given to each of the relevant factors under consideration within the policy. By doing so the Defendant has failed to adequately take into account relevant factors and given undue weight to certain factors."

That takes one back to the speech of Lord Steyn.

[34]I turn now to the decision letter. In paragraph 4, it sets out that its aim is to provide full reasons for the conclusion that has been reached, that the policy should be disapplied in this case. In paragraph 7 it is said:

"The parents' conduct whilst in the UK will be balanced against the effect that the removal action will have in respect of the child or children."

That is an assertion of balance and to my mind a correct assertion of the need to balance. A similar point is made in paragraph 29 which is the part of the letter dealing with the claim under Article 8.

[35]In the detailed grounds of defence paragraph 16, headed "The terms of the most recent letter from the Defendant", the points taken in that decision letter are identified as follows:

"The concession expressly permits the Defendant to proceed with enforcement action where removal has been delayed by protracted representations (the policy further provides for enforcement action to take place where deception has been practised, a point not expressly made in the decision letter but the Defendant will contend that it is implicit in the letter, when read as a whole, that he is relying upon this provision as well)."

That it seems to me is fair comment so far as the decision letter is concerned. Going on, another point made in this summary is as follows:

"The Defendant has taken into account the evidence relating to Soud, the youngest, but notes the finding of the educational psychologist in his case that he was only just below average. His circumstances are not such as to give rise to extreme hardship were he to return to Kenya with his family."

That is a clear reference in the decision letter to one of the factors referred to in the policy which will always be taken into account.

[36]That summary, also to my mind fairly, reflects the decision letter, and the absence in the decision letter of any attempt to seek to attach or describe what weight, if any, the decision-maker is giving to the particular problems that that child has, as demonstrated by the educational psychologist in the "in all the circumstances balancing exercise" that falls to be performed and thus in the application both of the general presumption to the specific facts of this case and the identification of the strong reason why, if there be one, the general presumption should not be applied.

[37]The grounds attack parts of the decision letter in which the claimant describes the immigration history as being wildly inaccurate. It seems to me that that is overstating the position, but I accept that there are passages within the letter which merit criticism in the basis that they lack particulars and/or that they exaggerate the position. The first I shall refer to is in paragraph 13, where it is said:

"It is considered that your client's immigration history is particularly poor - in particular she has made numerous different applications including an asylum application under a false identity - and that she has deliberately seriously delayed consideration of her case."

It is not immediately apparent what is being said so far as the last part of that assertion is concerned namely as to why that delay has been so caused. What was explained to me by way of submission is that I should infer that this is caused simply by the making of the false applications and that was the thought process of the decision-maker.

[38]Paragraph 24 begins with the assertion:

"Your client's immigration history has been severely protracted, largely due to the multiple applications of which one was made in an assumed identity, repetitive representations regarding nationality and the submission of further documentation."

The same points arise. When I asked counsel to particularise that assertion what he did was to essentially particularise it by reference to the fact that bogus applications were made and that applications were based on assertions which the adjudicator found to be lies. That is not, it seems to me, what that sentence necessarily asserts.

[39]Paragraph 25 reads:

"The length of your client's children's residence in the United Kingdom must also be balanced against the Secretary of State's duty to the public to ensure that benign extra-statutory concessions are not exploited by those who flagrantly abuse this country's immigration practices and laws. We consider that, were people in the position of your client allowed to benefit from the policy, it would act as an incentive to others to indulge in the type of deception carried out by your client. This would be contrary to fair and effective immigration control and would undermine the credibility of the policy itself."

As is flagged up in the detailed grounds (and flows in my view inevitably from the letter) the decision letter does not identify the aspects of the deception that are being relied on. That, it seems to me, is a significant omission when you are considering the weight to be attached to the particular conduct of this mother in the context of the underlying general presumption and the balance that it reflects. Further, in my judgment, a significant absence from the letter flows from its concentration on the particular wording of the policy by reference to "extreme hardship" and its failure to consider the nature and effect of the hardship asserted in respect of the youngest child and, if I can put it this way, the add-on features that this has to the general proposition or presumption which founds the policy. I also refer to the fact that the detailed grounds of defence do positively refer to deception. There is a heading in the "deception practised by the claimant." Under that heading there is reference to the submitting of the false claim and the submitting of the second claim but it does not include any assertion relating to the failure of the mother and the father to bring in the elements of the mother's claim when dealing with the father's claim.

[40]Returning, against that back-drop, to consider the approach set out by Lord Steyn, and reminding myself that I should read this letter generously, and of the difficulties which I acknowledge that the author of the letter has, I ask myself whether I should accede to the submission made on behalf of the Secretary of State that it is implicit in this letter that the Secretary of State is(a) isolating the aspects of the behaviour within the immigration history that were highlighted in submission and

(b) categorising them as being particularly poor or sufficiently poor to outweigh the other factors which would point to their not being a strong reason for disapplying the general presumption?

[41]It seems to me is that that might well have been a compelling argument if the approach to be applied was the Wednesbury unreasonable approach or the old standard judicial review approach, because then the weight to be attached was a matter purely for the decision-maker. But that is not the approach and it seems to me that the scrutiny that is necessary, not least because this was the second attempt at the decision letter (and the third attempt, if one adds in the explanatory letter in respect of the first decision) means that it is necessary for me to consider and seek to discern the relative weight given by the decision-maker to all the relevant factors, (but in particular to those I have specifically identified in which I would include the delays of the Home Office and it appears to me that comparable delays are likely to have occurred in many cases in which the policy applies) in concluding that in all the circumstances of this case this immigration conduct was particularly poor and provided a strong reason for not applying the concessionary policy. It was submitted to me, and I accept, that the Secretary of State knows much more about the type and nature and range of applications that are made, and I should simply accept the Secretary of State's view that this conduct is particularly poor. That submission, to my mind, does not correspond with the correct approach as described by Lord Steyn.

[42]There is also to my mind a significant omission from the decision letter and the argument flowing from the point that it is very difficult to impute or imply what weight, if any, was given to the particular difficulties relating to the youngest child.

[43]Therefore it seems to me that this letter does not withstand the scrutiny that has to be given to it by the court applying the approach set by Lord Steyn.

[44]The question then arises as to what I should do. What I am asked to do by the claimant is, as I understand it, to quash the decision in the letter and remit it to the Secretary of State. It seems to me that that is a correct recognition of the fact that this is not a case on either side like the Baig case where it can be said that the decision is obvious if the balancing and judgmental exercise is properly carried out.

[45]A problem I see in taking that course, which would be the course which would normally flow from my reasoning, is that it will result in yet further delay potentially for some significant period, having regard for example to court timetables. I therefore propose to take what is perhaps an unusual approach, but to my mind one which is warranted by the history of this case. I do so in the hope that a final decision will be reached as quickly as possible, because in effect the challenge has come down to a reasons challenge. It seems to me that the appropriate course to get matters decided as quickly as possible against the backdrop (which I accept as a matter of common sense) that the prolongation of the process, albeit it results in this family remaining in this country, which is what they want, also creates pressure upon them in a number of ways because uncertainty continues, is to adjourn this application for judicial review. I will do so with a direction that it is to be relisted before me if that is possible before the middle of November, but if that is not possible, before the middle of November, then I will release it to be listed before another judge for reconsideration of the matter in the light of(a) any further points that the claimant wishes to put to the Secretary of State for consideration in the balancing exercise within the next 21 days, and then

(b) in the light of the reasoning of the Secretary of State, having regard to the points made during the course of argument and the points made in this judgment. That, it seems to me, is more likely to bring this matter to an end one way or the other as soon as possible, which seems to me should be the result. If I were simply to send the matter back for a decision, there would be another decision, another application for review, and there will be a number of months that would pass whilst people were waiting their place in the "court queue".

[46]So what I am going to do, having recorded my view that this letter does not pass the test set by Lord Steyn, is to adjourn this matter for hearing by me if available within the timescale I have set, to give permission to the claimant within 21 days from today to put in any further matters which she says the Secretary of State should be considering, and I will give the Secretary of State 21 days thereafter to provide a reasoned response and a confirmation of the decision that the Secretary of State is making. If the Secretary of State in that context decides that the policy will apply to this family, then unsurprisingly the matter will simply be taken out of the list. If the Secretary of State maintains his present view, then the matter will come back in the list with a time estimate of a day. I say a day, because I suspect it is highly likely that it will have to be dealt with by a different judge. I invite counsel please to draw that order.

[47]MR KHUBBER: My Lord, I am grateful for the observations given and the timetable you refer to.

[48]MR JUSTICE CHARLES: Is that a practical timetable? I am not completely wedded to the timetable, if you say it is impractical then I will ---

[49]MR KHUBBER: I have been informed that it is not a problem; it is fine for those instructing me. My Lord, the only other matter I was going to raise at this stage, and I do not know whether you want to address it, is in the light of what you have said as regards the challenge that has been before the court, obviously I appreciate the practical way that you have proposed that question can go forward. The submission is for the costs at least of the proceedings thus far to be paid by the defendant, because we have successfully challenged but the decision is flawed. That is the challenge in the case so far.

[50]MR JUSTICE CHARLES: I think I am going to reserve the costs to the final hearing. If there is a further hearing I am going to reserve it to that. If the Secretary of State changes the decision, then I will award you your costs. It seems to me that is the appropriate course. It may be sensible at this stage to simply reserve the costs on the basis that it is agreed between the parties that if the matter is withdrawn on the basis that the Secretary of State concludes that the policy should apply, then the Secretary of State should pay the costs of the proceedings, because other than that the order is going to look terribly complicated.

[51]MR KHUBBER: That will include obviously these proceedings up till now, and also anything further in terms, and I am told the decision is made.

MR JUSTICE CHARLES: Yes, I think that is the way it would work.

[53]MR KHUBBER: I was just putting it forward just as matter of principle, my Lord.

[54]MR JUSTICE CHARLES: As a matter of principle I think you are right -- what is said on behalf of the Secretary of State.

[55]MR KHUBBER: I just thought as a matter of principle in terms of the decision that is challenged we have been successful and on that basis costs can be awarded now and then whatever happens can be resolved later, but if your Lordship thinks ---

[56]MR JUSTICE CHARLES: I can see that. What would the Secretary of State say about that?

[57]MISS VENTHAM: My Lord, given my late arrival to this case, it is almost worse case scenario for me personally to have to deal with it, as I am sure you will appreciate.

MR JUSTICE CHARLES: Yes, I can think of worse.

[59]MISS VENTHAM: Yes, in the context of the costs issue I was going to ask that if there was going to be any sort of involved argument about costs that it be done on paper in any event, lest I do not represent the Secretary of State to the full.

[60]MR JUSTICE CHARLES: I think the reality is that the costs argument is one which you have difficulty on because the Secretary of State has lost, is really what if comes to. So I am not sure I am persuaded it is one I should have to go away and deal with on paper. I mean I think in the end what I am coming to is that ---

[61]MISS VENTHAM: My Lord, there is this consideration: that it may well be that in light of further details which you have invited the claimant to provide to the Secretary of State in order to make the final final decision, as it were, that it may be that matters that are raised in that context from now on might lead to a different decision.

MR JUSTICE CHARLES: I follow that.

[63]MISS VENTHAM: In which case those were matters that were not before the Secretary of State when the previous notice was drafted.

MR JUSTICE CHARLES: You are publicly-funded, I assume.

[65]MR KHUBBER: We are publicly-funded, but can I just make the point. I think your judgment is very helpful in terms of appreciating a practical resolution of this case. There is no doubt that that is helpful to everyone. The point that I would simply make is that at this stage it is legitimate and proper, and I obviously appreciate my learned friend's difficulties coming into this case, but this is not really a problem for her in terms of where we are with what has happened, that an award of costs would be sensible.

[66]MR JUSTICE CHARLES: In the end I am persuaded that that is right. It seems to me that that is right, because all I am doing is cheating, really, in the sense of saying that it does not go back into the general melting pot and you have won, therefore I think you should have your costs to this stage.

[67]MR KHUBBER: Then afterwards if anything further happens, for example if new information is provided which has an impact ---

[68]MR JUSTICE CHARLES: Well the argument I think might go that if the new matters are ones you could have provided before were -- and it would have made that difference, then there may be that argument, but I think at the moment ---

[69]MR KHUBBER: But that is a different point to the challenge being successful upon the basis of what has been provided. Do you see my point, my Lord?

MR JUSTICE CHARLES: Yes.

[71]MR KHUBBER: That on the basis of what we have provided we have won, we should have our cost. If there is a change in the position on the basis of further evidence that is a different stage of matters, and we can deal with that in due course. So that is my application.

[72]MISS VENTHAM: My Lord, I simply make the rather general observation that because of the way that your Lordship has approached this case there is of course at the moment not a final decision, and therefore effectively not a final decision upon which a costs order can bite, as it were. Because you are adjourning it it has not actually been resolved, although the claimant says we have been successful, they have not been formally or officially -- it is not over yet, if I can put it in those terms.

[73]MR JUSTICE CHARLES: Thank you, I see there is some force in that. However, it does seem to me that the reality of what I have done is I have found that at this point the claimant has been successful in this application for judicial review. That is where the battlelines were drawn. As a matter of discretion, to enable a decision to be made with a degree of promptness that would not otherwise occur if I had sent the matter back to the Secretary of State. I have ordered an adjournment, and therefore it seems to me that the normal position should follow that the claimant should have costs up until today, and that the parties will have to argue about the position as to costs thereafter in the context of any adjourned hearing that takes place or any discontinuance of the proceedings.

[74]MR KHUBBER: My Lord, the only other thing, you also just need to say detailed assessment.