Sadowska, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 797 (Admin)

Case No CO/4569/2005[2006] EWHC 797 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 th March 2006
Strand
London WC2
B E F O R E:
MR JUSTICE WILKIE
Between
THE QUEEN ON THE APPLICATION OF HALINA SADOWSKAClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR STEPHEN KNAFLER (instructed by Messrs Pierce Glynn Solicitors, 1 Trinity Street, London SE1 1DB) appeared for CLAIMANTMS NICOLA GREANEY (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE WILKIE: This is the hearing of an application by the claimant, Halina Sadowska, for judicial review of decisions of the Secretary of State for the Home Department dated 23rd June 2005 and 27th July 2005. Initially the claim was addressed solely to the earlier of those two decisions, which concerned asylum support but subsequently, by amendment, she sought to review the decision of 27th July 2005 which was to grant her leave to enter the UK on a discretionary basis until 27th July 2008. With the passage of time, the first of those decisions has ceased to apply and therefore the proceedings are entirely academic as far as that is concerned. The sole focus of this case, therefore, is the decision of 27th July 2005.[2]I first give a brief chronology of the salient events. The claimant is a Polish national of Roma descent. In November 1992 she arrived in the United Kingdom with her husband and four children, including Artur, who was born in 1986, and Mary, born in 1990. Her husband initially applied for asylum, unsuccessfully, and in December 1997 the claimant applied for asylum. Some four years later, before her asylum claim had been dealt with, through her solicitors, she wrote a letter dated 27th June 2001 which claimed that her right to remain should be considered in the light of Article 8 of the ECHR. In the course of advancing arguments in support of that claim, reference was made to the Home Office policy with regard to children who had spent seven years of the formative part of their lives in the UK. The defendant has never replied to that letter.[3]On 18th July 2002, her asylum claim was refused and appended to that decision, as a matter of routine, was a document setting out removal directions to the country of nationality. On behalf of the Secretary of State it is submitted that, although the document is not to hand, the removal direction must have been one which indicated an intention to remove at some date in the future rather than a direction to remove on a specific date. At any rate, that decision upon asylum informed the claimant of her entitlement to appeal to an adjudicator, as it then was. The appeal hearing was on 26th January 2004. The decision was dated 30th January 2004.[4]The issues under appeal were respectively: an appeal against refusal of leave to enter after refusal of asylum by the defendant; and, by a slightly later notice of appeal, dated 8th August 2002, a claim that her removal from the United Kingdom would breach Article 8 of the ECHR. The Adjudicator allowed the appeal but only on the second of the two grounds. He dismissed the appeal against the refusal to grant asylum status but, in paragraph 26 of his decision, he said:
"...I find that the decision appealed against would cause the United Kingdom to be in breach of the law or its obligations under the European Convention on Human Rights."
In coming to the Article 8 decision, the Adjudicator took full account of all the circumstances of the case and, in particular, of the length of time during which the claimant, and in particular her children, had been resident in the United Kingdom. Reference was made in the decision to two policies of the Secretary of State in that respect. The first was the long residence policy, under which the Adjudicator, erroneously as it turned out, indicated that they should be granted indefinite leave to remain in accordance with policy Dec/00. Reference was also made to the seven-year child concession policy, which is the focus of this particular case.[5]The Adjudicator having allowed the appeal, the Secretary of State then had to decide what to do. By a letter of 11th May, the Secretary of State stated he was minded to grant discretionary leave to remain, initially of three years. The claimant's solicitors responded on 13th May and indicated that the claimant had expected that she would be granted indefinite leave to remain under the Home Office amnesty exercise. This letter refers to previous correspondence concerning their claim that their client qualified for granting indefinite leave to remain. It may be that they were referring to the letter of June 2001, to which no reply had yet been received, but that was not explicitly stated to be so.[6]At any rate, on 27th July 2005 the Secretary of State notified the decision to grant discretionary leave to enter in accordance with the published Home Office asylum policy instruction on discretionary leave. That meant an initial period of discretionary leave of three years. There then followed further correspondence concerning that decision in which reference was made, amongst other things, to the seven-year child concession. On 8th December 2005, the Secretary of State wrote in response. In dealing with that particular policy, he said:
"The policy referred to by the adjudicator in relation to length of residence of children is DP5/96, a copy of which I attach. This policy confirms that it is a consideration to be made prior to enforcement action/removal and therefore, as the Secretary of State is not removing this applicant, as discretionary leave has been granted, it has not been considered and would not be considered. "
The decision by the adjudicator that removal would breach our obligations under the ECHR is the basis upon which a decision to grant three years' discretionary leave is made, as per the published policy as referred to above."[7]Consideration has to be given to two policy documents and the interrelationship between them, as well as the practice of the Secretary of State, as evidenced by various statements in a number of court cases and in the present case by Helen Anderson. The first policy document is DP5/96, "Deportation in cases where there are children with long residence". In its introduction, it says as follows:
"The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents would have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence."
The policy is then set out as follows:
"Whilst it is important that each individual case must be considered on it merits, the following are factors which may be of particular relevance."
There are then set out a series of six factors which, in addition to the seven-year basic requirement, will be taken into consideration. Paragraph 3 then says:
"When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits."
[8]The point is made by the Secretary of State, and it is not in dispute, that this policy, on its face, only applies in cases concerning either deportation or administrative removal or removal as an illegal entrant. It does not, on its face, apply where the Secretary of State is considering an application for leave to enter or remain. It is also to be observed that the policy document says nothing at all about what decisions should be taken if the policy applies, other than that there should not be enforcement or removal. In particular, it does not say anything about whether any leave to remain to be granted should be indefinite or should be for a limited period of time.[9]The second policy document concerns discretionary leave, that is to say leave to remain outside the ambit of the Immigration Rules. This document does not claim to be comprehensive, although it does set out the general policy for discretionary leave in the types of situation which may arise in asylum and human rights cases. In other cases the officer is referred to other policy documents. The document on discretionary leave sets out in part 2 the criteria for granting discretionary leave and one of them, paragraph 2.2, concerns cases where removal would breach Article 8 of the ECHR and it says:
"Where the removal of an individual who has made an unsuccessful asylum claim would involve a direct breach of Article 8 of the ECHR (that is by breaching their right to a private and family life in the United Kingdom) they should be granted Discretionary Leave. This is a qualified right. Article 8(2) sets out where a State would be justified in breaching the right set out in Article 8(1)."
[10]The duration of a grant of discretionary leave is provided for in part 5 of this document. The initial period of leave is said to be three years but an application may be made for further leave towards the end of the initial three-year period. Part 8 of this document concerns applications for settlement and provides that a person will normally become eligible for consideration for settlement after completing six continuous years of discretionary leave. In the present case there had been a finding that removal would breach Article 8 of the ECHR. On the face of it, one of the grounds for granting discretionary leave under this document arose. Under this policy discretionary leave would, in the first instance, be for three years. That is the decision to which the Secretary of State came on 27th July 2005. The question is whether he ought, in addition, to have considered the "seven year child concession" as, on the facts, the conditions for it to apply had arisen.[11]The Secretary of State has indicated in evidence in this and in other cases that, although the seven-year child concession policy is one which only applies where deportation or administrative removal is in question in relation to what are called "in-country cases" - ie where someone has entered the United Kingdom and, for whatever reason, is subject to removal thereafter, officers who are considering whether or not to grant leave to enter or remain on a basis which falls outside the rules will have regard to the principles under the seven-year child concession when the question arises in the context of removal of such a person from the United Kingdom.[12]Mr Knafler, for the claimant, says that, consistent with the Secretary of State's indication in a number of cases, this claimant was entitled to have the Secretary of State, in considering how to responded to the Adjudicator's decision, not only apply the discretionary leave policy, which gives rise to leave for an initial term of three years, but also to consider the principles underlying the seven-year child concession, the requirements of which she and her children satisfied. The Secretary of State ought, therefore, to have had in mind the question of granting indefinite leave to remain rather than merely leave for a period of three years.[13]The Secretary of State accepts that if, in truth, this is a case in which the Secretary of State should have had regard to the principles underlying the seven-year child concession policy, then that policy, in conjunction with the finding of the Adjudicator under Article 8, could have led him, in an appropriate case, to grant indefinite leave to remain rather than three years under the discretionary leave policy.[14]Mr Knafler makes two submissions. The first is that the Secretary of State has erred in failing to recognise that, on the facts of this case, this was a removal case so as to fall within his consistent policy of having regard to the seven-year child concession principles, in the context of an application for leave to enter or remain in circumstances in which there is a question of removal of the claimant.[15]The second is that a series of cases reveals that the Secretary of State has, and the court has approved, a policy of applying the principles of this concession in leave to enter or remain cases where removal was not in issue. In particular, he relies directly on the cases of MA (Seven Year Child Concession) Pakistan [2005] UKIAT 00090; by way of analogy the case of R(Ahmed) v Secretary of State for the Home Department [1998]; and directly the case of R (Mobin Jagot) v Secretary of State for the Home Department [2000] EWHC Admin 2736.[16]The Secretary of State says that, if the facts of MA and Ahmed are looked at properly, they reveal that the Secretary of State's position has been consistent throughout in acknowledging that the principles of the seven-year child concession policy fall to be considered in cases where the claimant has become liable to removal or has reached the end of the line, even though the initiative for consideration of the policy has been taken by the claimant rather than the Secretary of State. In essence, his argument is that it is a matter, perhaps, of accident whether it is the Secretary of State who raises the question by considering the person for removal, or the claimant, anticipating that a removal might be on the cards, who raises it in correspondence by asserting in advance that they fall within the policy. The one case in which, on the facts, it appears that the Secretary of State did apply the seven-year child concession policy in a case where removal was not on the cards, is Mobin Jagot but, it is said by the Secretary of State, that is a case which turns on its own rather peculiar facts.[17]This latter proposition of Mr Knafler raises an important question of principle because, if he were right, then it would significantly extend the category of cases in which the principles of the seven-year child concession would fall to be considered. In my judgment, it is unnecessary for me to reach any conclusion on this issue because I am satisfied that the claimant's case was one in which, to use the phraseology of counsel for the Secretary of State, she was liable for removal and had reached the end of the line.[18]The appeal to the Adjudicator was launched in the context of a decision refusing her claim for asylum and annexing removal directions. The decision of the Adjudicator was that her removal would breach her Article 8 rights. The Secretary of State asserts that such a decision by the Adjudicator is not, in itself, determinative of what should happen. The Secretary of State has to decide what to do. The context of that decision remains. There is a document containing removal directions. It may be inconceivable that the Secretary of State would decide to remove the successful appellant but, nonetheless, this is, in my judgment, a case in which the SSHD has to make a decision in the context of removal. It is at least as much within that context as the case of MA and some of the cases considered in Ahmed.[19]In my judgment, therefore, the Secretary of State erred in law in failing to have regard to the seven-year child concession principles in deciding how to respond to the decision of the Adjudicator of 30th January 2004. It therefore follows that his decision letter of 27th July 2005, as explained by the subsequent letter of 8th December 2005, contained an error of law. As such, that decision cannot stand as the final decision concerning what category of leave should be given to the claimant. The relief which is sought in this case is in the form of either a declaration or a mandatory order. In particular, the relief sought under paragraph 4 is a mandatory order requiring the defendant to consider whether the claimant and her family ought to be granted ILR, taking into account the seven-year policy in relation to the two children. Unless I am persuaded otherwise, that is the form of relief which I am minded to make.[20]MS GREANEY: My only observation, my Lord, would be that the Secretary of State would say that it would be more appropriate to say "mandatory order requiring the defendant to consider the seven-year child concession relating to children when deciding what relief to make", because, insofar as it gives rise to any assumption that the Secretary of State will come to a view about ILR, the view would simply be that it is taken into account.

MR JUSTICE WILKIE: Well, Mr Knafler, are you content with that?

[22]MR KNAFLER: Yes, I would not have thought that that creates a presumption, as an outcome of wording, that the Secretary of State will grant ILR but if it is convenient for everybody concerned to word the mandatory order rather differently, then --[23]MR JUSTICE WILKIE: Well, I am happy to leave it to you to haggle over what the precise terms of the order are to be.[24]MR KNAFLER: Perhaps we could agree an order that does not rule it in and does not rule it out.[25]MR JUSTICE WILKIE: Yes. Very well, if you want to draft an order which you both agree then that is fine and if there is any disagreement then, well --[26]MR KNAFLER: I am sure there will not be. I suppose that leaves the question of costs. I make an application for them. I think my learned friend is agreeable to paying the claimant's costs on the standard basis, subject to detailed assessment if not agreed and then I just ask for a detailed assessment of the claimant's publicly funded costs. I do not think there is any further relief that I can see. We will draft something up.

MR JUSTICE WILKIE: Does the Secretary of State have anything to say on costs?

[28]MS GREANEY: No, nothing to say on the matter of costs, my Lord. I do have instructions to ask for permission to appeal. It would be on the point -- I appreciate that your Lordship has narrowed it down and certainly avoided making any ruling on the wider issues, if I may put it that way, but nevertheless the point that this is a policy to be taken into account in circumstances such as the claimant's, following a successful appeal to the Adjudicator, is one that the Secretary of State sees as of some importance because, at the moment, obviously, that is not the stage when it is being applied. So it is a matter for the Secretary of State which has nevertheless a wider importance and so it is one where the Secretary of State's current position is that that is not a removal case. Clearly there are -- as much as I appreciate your Lordship drew the point that it is up to the Secretary of State to decide what to do, there is --[29]MR JUSTICE WILKIE: I think you should see if you can interest the Court of Appeal with a matter of more general principle rather than simply on the facts of this particular case.[30]MS GREANEY: I am grateful.[31]MR JUSTICE WILKIE: And the defendant is to pay the claimant's costs, subject to detailed assessment if not agreed, and full assessment of the public funding of the claimant.[32]Thank you both very much indeed.

Cited in 2 later judgments