Ali, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 1983 (Admin)

Case No CO/7510/2006[2007] EWHC 1983 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 5 July 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ALIClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss F Webber appeared for ClaimantMiss Chan appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: In 1999 the claimant, her husband and seven children arrived in the United Kingdom and claimed asylum. The claimant and her children were eventually granted indefinite leave to remain on 24 February 2000. In September 2004 her husband sought indefinite leave to remain on the basis that he was a dependant of her. The children were, when they came to this country, aged between 12 and under 1 year. Since they have been here, I think two more children have been born. Those two children born here are, of course, British citizens.[2]Following the husband's application in September 2004, he received a letter from the Home Office which said, after indicating that the letter would be passed to a case worker:
"We should deal with postal applications within 13 weeks at the most from when we receive them in IND. We aim to complete 70% of postal applications within three weeks of receiving them in IND."
That was an entirely empty promise because in fact his application was not considered, or not dealt with, until May 2006, nearly 18 months later, when it was granted.[3]There was a follow-up letter written by the Hammersmith and Fulham Community Law Centre on 13 November 2004 in which he asked to be considered under the Home Office's one-off exercise to allow families who had been in the United Kingdom for three or more years indefinite leave to remain. Accordingly that further ground on his behalf was added to the claim which he made in September 2004.[4]In the meantime, the eldest child was approaching the age of 18. Once 18, an individual is obliged, if not a British citizen, to apply in his own right, whereas if under 18 he can be joined in an application made on his behalf by a parent. Accordingly the application on behalf of the children and on behalf of their mother, the claimant, was made in June 2005. She was then acting in person. She claimed naturalisation and claimed registration of the seven children. The response to that came on 20 December 2005 when the Home Office, in relation to the children, stated as follows:
"The registration of minors under this provision [that is Section 3 (1) of the British Nationality Act 1981] is at the Secretary of State's discretion. Normally minors would not be registered if, as appears in this case, one of their parents is subject to conditions of staying in this country."
That was a reference to the father who, at that stage, did not have indefinite leave to remain, his application made in September 2004 and supplemented in November 2004 not having by then been determined. The letter goes on:
"The application has nevertheless been carefully considered to see whether there were sufficient grounds for treating it exceptionally. Sufficient grounds have not been found to exercise discretion in this case. The application has therefore been refused. A fresh application can be made if their father obtains indefinite leave to remain in the United Kingdom. I cannot say what the decision might be then as it would depend upon the circumstances at that time."
[5]There is a specific reference to the eldest child who had, by then, become 18 but who, it was said, was facing a criminal charge. That charge has since been dropped. But that is not a matter which is material for the purposes of my decision in this case.[6]The approach of the Secretary of State to decisions under Section 3 (1) of the British Nationality Act has been set out in a document, details of which are available on the Home Office website, and thus are able to be known to all. The discretion is an unfettered one, in the sense that there is nothing in the Act which indicates the manner in which it should be applied. So the guidelines set out by the Secretary of State are an indication of the matters that will be taken into account and the approach that will be adopted in exercising his discretion. But, as is said at the outset in the part of the document which is material, the Secretary of State recognises that the discretion is an unfettered one and therefore it would be inappropriate to tie it down to any rigid considerations. What paragraph 9.1.4 states, at Chapter 9B dealing with Registration of Minors and discretion under Section 3 (1), is:
"It is important to remember that the guidance in this Chapter does not amount to hard and fast rules. It will enable the majority of cases to be dealt with. But because the law gives complete discretion, each case must be considered on its merits. All the relevant factors must be taken into account. Again there have been representations made to us. If we do not, we are open to criticism for not exercising our discretion reasonably."
That is an impeccable self direction as to the approach that should be adopted.[7]The guidance then deals with various matters that are to be regarded as relevant in particular situations. At paragraph 9.15.2 it is stated:
"The most important criterion is that the child's future should clearly be seen to lie in the UK. A reliable indicator should be the applicant's and/or the family's past behaviour. If that suggests an established way of life in the UK, and we have no reason to think that this would not continue, we should accept at face value that the child intends to live here."
[8]There is a heading Citizenship and Immigration Status of the Parents. At paragraph 9.15.9, this is stated:
"If the application is included in or associated with the parents' application for British citizenship, we should expect both parents to be settled here."
This application was included in or associated with the mother's application for British citizenship and therefore the status of the father was material for the purposes of that paragraph of the guidance. At paragraph 9.15.10 it goes on:
"If the parent's application is refused then we should normally refuse the minor's application as well."
In this case, the mother's naturalisation application was allowed. As I have indicated, the children's application was refused. At paragraph 9.15.13 it states:
"An application that falls outside this criteria should not normally be approved even if there are differences in siblings or siblings with entitlements, and registration as British citizens, unless we are satisfied that registration would be in the child's best interests."
There was here at that time, I think, one British citizen sibling; there is now another. That was the guidance to which the decision maker clearly had to have regard.[9]As appears from the letter of refusal, the decision was based on the fact that the father did not have a leave that was not subject to any conditions, to remain in this country. But the letter went on to indicate that the matter had been considered nonetheless, to see whether there were sufficient grounds for treating it exceptionally but none been found.[10]Following that refusal, the Hammersmith and Fulham Community Law Centre, on behalf of the claimant, wrote a pre-action protocol letter to the relevant Home Office unit. In that, they set out in some detail the relevant paragraphs in the guidance which they asked the Secretary of State to take into account. They included various documents which they said supported the contention that the parties were intending to live here permanently and made the point that it was unreasonable, in their submission, not to register the children because the mother had been naturalised and had been in the United Kingdom for more than 5 years. The fact that the father was not at that stage settled, in the sense that his application had not been dealt with, should not be used against them because they clearly had strong links with the United Kingdom.[11]The point was made of the delay in that the applicant's father's settlement was initially due to family circumstances such as a brief separation of the applicant's parents; more recently, it was the Secretary of State's unreasonable delay. The father's family difficulties had led to a delay in making the application in September 2004 and there had been no family circumstances creating any delays since the application had been made. The delay had been solely due to the Home Office's failure to comply with its target of 13 weeks. The letter did also include this paragraph:
"Furthermore Mr Hasan has experienced serious delay in his settlement application which was made in September 2004 and which was acknowledged by the Secretary of State in a standard letter dated 22 September 2004. A further settlement application under the exercise of the Home Office's policy was also made on Mr Hasan's behalf in a letter dated 13 September 2005. Again there has been no response from the Secretary of State regarding this further application. Clearly Mr Hasan's settlement application has every prospect of succeeding."
Mr Hasan is the claimant's husband. That contained an error because the letter in question was not dated 13 September 2005 but 30 November 2004. There had been a chasing letter on 13 September 2005. This pre-action letter led to a response which said the matter was being referred to a case worker.[12]On 27 February the response came to say that the representations had been carefully considered, that the claimant might wish to note that Section 14 of Chapter 9 related solely to those made on the basis of connection with Hong Kong and did not apply, but it had been decided that it would be right to review the decision. It was said that her file containing her application for naturalisation in which the children had been included had been requested from storage and that the decision would be reviewed by a senior case worker.[13]In the meantime, as I have recorded, on 24 May the father was granted indefinite leave to remain. The law centre sent a chasing letter on 31 May 2006 because nothing had been heard following the Home Office letter of 27 February stating that there was going to be a review, and they included the fact, or confirmation, that the father had been granted indefinite leave.[14]Finally on 16 June 2006 came the reply from the senior case worker, in fact from the assistant director of the relevant unit. In it, this was stated after apologising for the delay in replying:
"Mrs Ali applied for naturalisation in July 2005 and included in her application were names of her children which she wished to register. She indicated that she was married and provided details of her husband. Her application was granted but those of her children were refused because with applications included in or associated with the parent's application for British citizenship we expect both parents to be settled here. This is covered in the national staff guidance, Chapter 9 paragraph 9.15.5 which is available for viewing on the Home Office website. Mr Hussein Ali Hasan - the father - had applied for neither citizenship nor settlement which cast some doubt on the family's future. The applications made under Section 3 (1) of the British Nationality Act 1981 were correctly refused under the relevant policy, the procedure based on the information supplied by Mrs Ali."
[15]It is suggested that in those circumstances there is no real prejudice to the defendant and the children in refusal of the claim which is the subject of these proceedings because if they have a good claim, as they appear to do, they can make it and it will be considered and dealt with afresh.[16]The problem with that is two-fold. First, it is not inexpensive to make a claim. I am told that the amount, if they were to make fresh claims, is something in the order of £1,700. That is partly because now two of the children are over 18 and have to make applications on their own account and will, of course, have to pay the necessary fees to enable that to be done. In addition, in their cases there are added hurdles which they have to surmount in the form of questionnaires and so on. I do not need to go into the details.[17]It was following that refusal that the law centre obtained an opinion or advice from counsel. That led them to send a letter of 8 August in the form of a pre-action protocol letter in which they challenged this decision, and invited the Secretary of State to reconsider and to conclude that there were sufficient grounds for treating the case exceptionally. This letter fell on stony ground.[18]In due course - following a short refusal stating that the decision to refuse the original application was correct but that the circumstances had changed and that the first application should now succeed - came a reasoned letter from Mr Dalton, who had been responsible for the letter of 16 June, following reconsideration. In that letter, so far as material, he says as follows:
"I note that you have obtained counsel's opinion. This appears to be based on a presumption which already ..... forms part of the formal review process. It may be helpful to explain that whilst there is no legal right of appeal under British nationality law, it has been our practice for many years to hear representations against refusal in order to assist applicants better to understand why they have been refused ..... Applications that have not been decided in accordance with the law and prevailing policy are re-opened on request of further reconsideration. Those that remain in accordance with law and the prevailing policy, where the Secretary of State has discretion to vary and disregard subject to requirements in certain circumstances, would have been judged against existing precedents to determine whether it is sufficiently different from other cases which have been routinely refused to justify the waiving of the precedent in the exercise of discretion. Representations regarding the exercise of discretion will be reviewed to ensure this basic principle has been followed. Your practitioners are familiar with nationality legislation and have, since December 2001, had access to nationality staff instructions through the Home Office website. The staff instructions carry forward agreed policy on the determination of applications. We would expect therefore that representations from legal practitioners should be cogent and based on the legal requirements of the application of existing policy on the applicant's particular circumstances. In this case the applications were correctly determined on the date of consideration for the reasons we have provided ..... We cannot continue to assess applications in response to changing circumstances once they have been decided. If the family continue with their wish to gain British citizenship then it is open to them to make fresh applications. We will request a full cost recovery if the matter is referred for judicial review."
This claim was then lodged on 11 September 2006.[19]One of the matters raised in the acknowledgement of service was delay, it being said that the challenge should have been to the decision in December 2005 not to the refusal to reconsider in June 2006. Whether or not there is any merit in that is immaterial because Mr Justice Bean granted permission, and so it is not necessary for me to go into that issue at all.[20]The submission made by the Secretary of State is essentially the same as that adumbrated in the letter from Mr Dalton, which I have just read out. It is said that the decision was based upon a failure to comply with paragraph 9.15.9 in the sense that the father was not at that time settled and therefore, as the guidance puts it, the application should not be accepted. As Miss Chan accepts, and as the guidance makes clear, that is not an automatic bar to acceptance of the application. It is of course an important factor, but the circumstances in which the parent has not received settlement and the likelihood of settlement being achieved are material factors in so far as the Home Office is able to have knowledge of those matters. It clearly in this case was aware, or should have been aware, that the father had made his own application for settlement here.[21]In addition, there is what appears to be a very important consideration - indeed the guidance says it is the most important criterion - namely, the child's future should clearly be seen to lie in the United Kingdom. So far as that was concerned, there was nothing in the material before the Secretary of State which suggested the contrary. The important sentence in the letter of 16 June is this:
"Mr Hussein Ali Hasan had applied neither for citizenship nor settlement which cast some doubt on the family's future."
It is to be noted that the pluperfect and perfect tenses are used. This was in the context of a review of the decision made in December 2005.[22]The natural meaning of those words must surely be that the writer was saying that what had been taken into account in reaching that decision was the fact that he had applied neither for citizenship nor settlement and that that cast some doubt on the family's future. That was wholly wrong. He had applied for settlement. So, to suggest that there was doubt cast upon the family's future because of that was plainly wrong. His challenge submits that there is nothing in the letter of 20 December 2005 which indicates that that was in any way the belief of the official who refused the application at that time. The only reference to father is an indication that a fresh application could be made if father obtained indefinite leave to remain. It does not indicate whether or not there was an awareness that father had made such an application.[23]It is not open to Miss Chan to suggest, as at one stage she seemed to be doing, that the decision maker in December was aware of the true situation without there being some evidence from her that that indeed was the situation. That would, in my view, be entirely contrary to the sentence which I have laid emphasis on contained in Mr Dalton's letter of 16 June 2006. The claimant takes a wider point that if there is an agreement to review a decision - and on that review the situation is such that the facts then presented show a strong claim for registration - then that is what should happen. It is not incumbent on the Secretary of State to agree to a review if all that is suggested is that there are now other circumstances or that there is fresh material which he ought to take into account. That, in itself, would not justify a different decision unless of course it was material of which the Secretary of State ought, in any event, to have been aware.[24]The situation here is that the original decision maker reached a decision on a material misunderstanding of the true facts. It seems to me that in those circumstances where a review is accepted then the Secretary of State ought, if it is clear that there are grounds for considering the matter afresh, to do so. Otherwise it seems a little pointless to have a review. It may be in certain circumstances that a request may be treated as a request for further and better reasons as to why a claim has failed so that the applicant can decide whether a fresh claim should or should not be made and, if made, what material facts should be dealt with. That is a different form of review if "review" is the right word. Effectively that amounts to elucidation of the reasons as to why the decision is reached. If the Secretary of State wishes to limit the matter to that, he is entitled to do so and that would be, no doubt, an appropriate course where there was concern expressed and a failure to understand fully why the claim had failed.[25]Here, a review was promised. If a review is promised and carried out then it seems to me that it is a somewhat futile exercise unless the Secretary of State is prepared, in the circumstances, to carry it out properly and to reconsider if it seems appropriate to do so.[26]However one does not need in this case to approach the matter on quite such a wide basis. It suffices that there was, in my judgment, here, quite clearly, failure to have regard to the proper factual situation and there can be no doubt in the terms of the letter of 16 June that that situation, namely belief that there was some doubt on the family's future, was highly material in rejecting their claim.[27]Miss Webber also relied on the delay, making the point that it was hardly fair for the Secretary of State to place reliance on the absence of settlement when he himself had created the situation of uncertainty by failing to deal with the claim in a reasonable time. I have no doubt that that is a factor which is material and should have been taken into account because what, surely, is important in a case such as this, where there has been failure to deal with the matter within a reasonable time, is the likelihood of success of the father's claim. Settlement by the father is not an essential prerequisite to registration by the children, but obviously it is a factor and possibly quite an important factor, because if father had not obtained settlement it would, no doubt, be possible in the future that the family might decide to go back, in this case, to Somalia and live there. Practically, having regard to the situation in Somalia, it is not very likely. I suppose one has to hope the situation in that unfortunate country might improve.[28]The delay is not in any way determinative, but it is part of the circumstances which needs to be taken into account.[29]In those circumstances, and for all those reasons, I have no doubt that the decision made was wrong and the matter has to be reconsidered on a proper basis. Since it is plain, because father has now been granted settlement, that there was no conceivable basis for having doubts about the family's and the children's intention to settle here permanently, it would seem - indeed the letter from the Home Office makes this clear - that there is no bar now to the application being granted although it is of course right that the reconsideration now, as it seems to me, must be on the basis of the facts as they are now known to be. But even if one was going to limit it in any way, clearly the fact of settlement now is material because it shows that there could be no doubt about the situation then.[30]It is not appropriate for me to direct that there should be grant of registration. All I can do is to quash the existing decision by the Secretary of State and that must mean quashing the decision of December 2005 as well as the refusal to reconsider it and the decision to uphold it, and to direct that the Secretary of State reconsiders the matter in accordance with this judgment. I cannot direct that he grant registration but, in the light of what he has said himself through his officials and what is now known, it would be a surprising decision, on the face of it, if he would not.[31]MISS WEBSTER: I am grateful. I do apply for costs of the application.[32]MR JUSTICE COLLINS: Yes. I do not think you can resist that, Miss Chan, can you?[33]MISS CHAN: No.

MR JUSTICE COLLINS: You are legally aided?

[35]MISS WEBSTER: Yes.[36]MR JUSTICE COLLINS: In that case, costs with the usual orders, detailed assessment if not agreed. I think there has to be detailed assessment with legal aid.[37]MISS WEBSTER: I think so, yes.[38]MR JUSTICE COLLINS: Anyway whatever the necessary order is, and you need an order for your own - - - - -[39]MISS WEBSTER: Yes.

MR JUSTICE COLLINS: Which you will have.

[41]MISS WEBSTER: Thank you.

Cited in 1 later judgment