Farinloye, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2938 (Admin)

Case No CO/1333/2007

[2008] EWHC 2938 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 10th November 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF FARINLOYEClaimant

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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Miss J Fisher (instructed by Pedro Emmanuel) appeared for Claimant

Miss K Olley (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: This is a claim by Miss Esther Omolara Farinloye and her two daughters for judicial review of the decision of the Secretary of State which was contained in a letter of 14th November 2006 whereby it would seem she granted the three of them (although the letter actually only refers to the mother) discretionary leave to remain for three years. The claimants assert that the result of their appeal to an Immigration Judge, which was in their favour, meant that the Secretary of State was required to grant them indefinite leave to remain. They say that the decision reached by the Secretary of State was contrary to that which should have resulted from the Immigration Judge's decision.

[2]The mother has a poor immigration history. She arrived in this country in October 1999 and was granted leave to enter as a visitor until April 2000. She overstayed and took no steps until April 2003 to try to regularise her position here. In the meantime, in December 1999 her two daughters had arrived in this country and had been granted limited to leave to enter until 22nd June 2000. In each case the normal six months' leave was granted on entry as a visitor.

[3]It seems that arrangements were made very shortly after their mother's arrival for her daughters to undertake education in this country, and that, it was suggested by the Secretary of State at the appeal, showed that she had in fact not intended to be a visitor at any time but was intending to remain in this country, at least so long as her children needed to be educated. The Immigration Judge was clearly impressed with her as a witness and did not hold that against her. He said that he did not take the view that simply enrolling her child in school necessarily meant that she envisaged overstaying at the outset, and she impressed him as a person who had extremely sincere values and beliefs and was somewhat ashamed of her conduct in overstaying at all.

[4]The application in April 2003 was for indefinite leave to remain in this country on an exceptional and compassionate basis. Unfortunately, it took the Secretary of State over three years to reach a decision, and it was not until June 2006 that the decision was made to reject the claim. In the course of the refusal letter, consideration was properly given to

Article 8 of the European Convention on Human Rights

and the decision was that there was no breach of that Article. So it is clear that the appeal before the Immigration Judge was, as the refusal letter and the determination itself records, following an application to be granted indefinite leave to remain and the refusal of that indefinite leave. It is true that the Immigration Judge in paragraph 1 of his determination, somewhat unhelpfully, says this:

"All are Nigerian citizens and all three appeal against the decision to refuse entry clearance to refuse an application for leave to remain on the grounds that removal would place the United Kingdom in breach of its obligations under the Human Rights Act 1998 . . . "

However, the application that was refused had been an application for indefinite leave to remain.

[5]It is clear that the Immigration Judge simply did not check properly what his word processor produced, because there was no question of this being an appeal against a refusal to grant entry clearance. It against a decision not to grant any leave to remain in this country.

[6]In the course of his determination, the Immigration Judge considered the circumstances of the claimant and her daughters. He considered the approach that he should adopt to Article 8, bearing in mind the authorities; in particular, the case of Huang in the Court of Appeal. That case applied a somewhat too stringent test, as the House of Lords subsequently indicated, namely that it was necessary to establish that there were exceptional circumstances to justify the removal of persons such as the claimant and her family who had overstayed and who had no entry clearances which gave them the right to come to this country and stay here for any purpose, let alone the education of her children.

[7]The Immigration Judge referred to a policy which was that children who had been in this country for seven years or more would normally be granted indefinite leave to remain, on the basis that they had effectively spent the formative years of their life here and it would be wrong to remove them after that length of time, even though they may have been here unlawfully. Neither of the two children qualified. The older one, in fact, would have been over 18 by the time the seven years had elapsed. The younger one would still have been under 18, and, as a result largely of the Home Office delay, by the time the matter came before the Immigration Judge and the date of the decision in was June 2006, they had not quite qualified for the seven year period. The Immigration Judge worked it out as six years and eight months. Not that it perhaps is of any great materiality, but I make it nearer six and a half years rather than six years and eight months. Be that as it may, it clearly was getting on for the period of seven years. As I say, that was a factor that undoubtedly, rightly or wrongly, he took into account (I suspect it may be wrongly) but, nonetheless, there was no challenge to his ultimate decision.

[8]He was really impressed with the point that it would have been an unfair and excessive disruption to their education if they were to be required to leave. At paragraph 24 of his determination he said this:

"Of course on a strict interpretation of the policy it is right that they could certainly readjust to life in Nigeria but that would have an effect of undermining their educational achievement and whilst maintaining immigration control it must be remembered that they are the two individuals who would suffer most from any such upheaval. It is also a factor that they are highly likely to make a significant contribution to the community in which they live embarking firstly on a sociology degree in terms of the first appellant and secondly by attaining four A Levels and studying law in relation to the youngest appellant. They have clearly gone a long way to re-establishing themselves in the United Kingdom and have spent their formative adolescent years in the United Kingdom. 25. If this decision had been taken in 2003 or 2004 even it is highly unlikely that either the second or third appellant would have suffered so much disruption to their education. As it stands they have come very close in time to benefitting from a full application of the Home Office policy relating to children."

He then went on to say that in his view it was a finely balanced case but he felt, on the peculiar facts, having regard to the exceptional nature of the delay and the effect that it would have on the second and third appellants, reestablishing themselves in Nigeria would not be an easy undertaking. He also referred to another case, which at the time had achieved some publicity, relating to a bright student from Ukraine. Quite why he should have taken the view that that was a material consideration, I am not sure, but he did, and he took the view that there would have been a degree of inconsistency to allow the Ukrainian and not to allow the children of the claimant. His decision then, having regard to all that, was that he allowed the appeal for the reasons stated.

[9]Following that determination, the Secretary of State notified the mother, by letter of 14th November 2006, that she had been granted discretionary leave to remain. The letter stated:

"I am writing to inform you that, although you do not qualify for leave to remain in the United Kingdom under the Immigration Rules, it has nonetheless been decided that discretion should be exercised in your favour. You have therefore been granted limited leave to remain in the United Kingdom in accordance with the principles set out in the Home Office Policy Instruction on Discretionary Leave. You have been granted discretionary leave to remain until 14th November 2009."

That, as I say, was directed to the mother. There was a reference to dependants in the body of the letter which told her that if she had children under the age of 18 the leave did not entitle them to join her in the United Kingdom. Otherwise, no reference was made to the children, save that their existence is noted at the outset of the letter as part of the details of those concerned. The letter itself was clearly in a somewhat inappropriate form. It should have made clear precisely what the position was in relation to the children, not merely left it to speculation or inference as to whether the children were in the same position as their mother, albeit they were going to be over 18 by the time the discretionary leave expired.

[10]An Immigration Judge, by virtue of section 87 of the 2002 Act, may give a direction for the purpose of giving effect to his decision, but he does not have to. Subsection (2) of section 87 provides that:

"A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1)."

No direction was in fact given. The appeal was merely allowed.

[11]Nonetheless, it is clear that the decision of the Adjudicator was binding on the Secretary of State. So much was decided by the Court of Appeal in R v Secretary of State for the Home Department ex parte Linda Boafo

[2002] EWCA Civ 44

. Miss Boafo had overstayed for some five years and then married a British citizen. She was granted permission to remain for 12 months as a foreign spouse, and in September 1996 she applied for permission to remain indefinitely on the basis of that marriage. That application was refused, and there was evidence that the Secretary of State had not fully appreciated the proper circumstances. The issue was whether they were still husband and wife and still living together. In fact, pending the hearing of the appeal in 1998, it seems that Miss Boafo's husband petitioned for divorce on the basis of her unreasonable behaviour, and also stated his belief that she only married him to obtain United Kingdom citizenship.

[12]In any event, the Adjudicator decided in her favour, the only issue before him being whether she satisfied the requirements of the relevant immigration rule which provided for indefinite leave to remain as a spouse of a person present and settled in the United Kingdom. The Adjudicator's decision was, as the judge who heard the matter at first instance decided, highly unsatisfactory and there was no question that the Secretary of State could and should have appealed to the Immigration Appeal Tribunal. The Adjudicator's reasons were unsatisfactory because he had failed to resolve the issue whether the couple had or had not been living together at the material time. That was obviously a crucial matter in relation to the correct finding in that case. Be that as it may, the decision was simply that the appeal was allowed. No directions were issued by the Adjudicator to the Secretary of State.

[13]In the Boafo case the Secretary of State did decide to reconsider the matter in the light of full evidence and reconsidered, and decided still, to maintain the decision that the claimant should not have indefinite leave to remain. The argument was that that was contrary to the Adjudicator's decision and was impermissible. The argument that was raised on behalf of the Secretary of State was essentially that the Adjudicator's decision, absent directions, was not, in the circumstances, binding on the Secretary of State and he was entitled to form a different view, if satisfied that there was material which justified such a decision. The court took the view that that was not permissible. At paragraph 27 Auld LJ, giving the only reasoned judgment, said this:

"As a matter of construction of section 19(3) and of the statutory machinery of which it forms part, the absence of directions from the adjudicator does not, in my view, deprive his determination of binding force in cases such as those of indefinite leave to remain which are concerned with the validity of a decision affecting existing immigration status. As Mr Weiniger pointed out, the recitation in section 19(3) of the power to give directions is prefaced by and dependent on the allowance of the appeal 'where the appeal is allowed'. Moreover, it would be surprising if the provision had the effect contended for by the Secretary of State, since not every allowance of an appeal requires directions for giving it effect. It is essentially a matter for the adjudicator's discretion whether to give them. And, as the Immigration Appeal Tribunal pointed out in Yousuf v ECO, Karachi, at 197, there is nothing in the statute requiring them to be given contemporaneously with the determination. Whether, on those accounts, they are to be characterised simply as 'administrative matters' is open to doubt since, as the Tribunal accepted in that case, at 197-198, a question whether to give directions may be a matter on which an adjudicator should hear evidence and submissions and on which he may be called to exercise discretion. Nevertheless, in my view, on an issue such as this, of indefinite leave to remain, the absence of directions does not leave a determination incomplete so as to deprive it of effect. Any other approach could render the machinery of appeal to the Immigration Appeal Tribunal provided by section 20 of the 1971 Act largely redundant in the case of such appeals allowed by adjudicators not accompanied by directions."

He went on to say that there might be circumstances in which the Executive could re-open the decision without appealing the determination; for example, because of fresh evidence. In that case since the only issue on the appeal was whether the appellant was able to bring herself within the provisions of the relevant immigration rule which granted indefinite leave to remain if she did, the allowing of the appeal inevitably meant that she should be granted indefinite leave to remain. Indeed, that was the order made by the Court of Appeal.

[14]Miss Olley has submitted that in this case what the Immigration Judge did was to find in favour of the claimants on the basis of Article 8 as it applied to the daughters and not directly to the mother, although obviously it was considered that she should remain in order to look after her daughters whilst they were still undergoing full time education. Accordingly, it is submitted that the Secretary of State was entitled to apply the relevant policy that related to decisions made in favour of a claimant on the basis of Article 8. The policy stated that such cases would receive three years' discretionary leave and the matter would be then further considered. If circumstances had changed after the three years they might not get further leave, and if circumstances had not changed then the likelihood would be that they would then be granted indefinite leave. The decision was based on Article 8. Accordingly, it was reasonable, and indeed proper, to apply the policy relevant to decisions based upon Article 8.

[15]That is, on the face of it, a powerful argument. It is said to have been supported by the approach of Gibbs J in Shahid v Secretary of State

[2004] EWHC 2550

Admin. That was a case in which there had been an application for exceptional leave to remain. There was a favourable finding based on Article 8 and the Secretary of State granted three years' discretionary leave to remain. The argument was that the only proper way of implementing the Adjudicator's decision was to grant indefinite leave to remain.

[16]It was being argued in that case that it was not only not likely but was virtually impossible that the circumstances found by the Adjudicator to justify not removing the claimant would change so that the only proper basis for dealing with the Adjudicator's decision was to grant indefinite leave to remain. The only question was whether in the circumstances it was or was not a proper implementation of the appeal to grant only discretionary leave for three years.

[17]Reference was made to the relevant policy. It, itself, was not under attack and at paragraph 43 the learned

judge said this:

"In my judgment, there is nothing about the claimant's history or the duration of his stay in England which should have driven a reasonable Secretary of State to the conclusion that his case was exceptional. Do the findings and reasoning of the adjudicator on 25th April 2003 make a difference so that taken with all the other factors the Secretary of State should have regarded them as exceptional? The adjudicator's findings about his family life in England are now common ground. The Secretary of State's decision is not inconsistent with the adjudicator's finding that his removal would constitute a breach of Article 8 since the decision itself does not involve removal. On the contrary, it gives leave to remain. The Adjudicator did also make his findings concerning default on the part of the Secretary of State and the contribution that this made to the failure of the claimant's asylum claim and the delay. Default was indeed conceded by the Home Office representative at the hearing."

He then went on to deal with the practical circumstances and recognised that there was some blame, it seems, because of delay to be attached to the Secretary of State. The decision was that there was no breach of the claimant's rights and no failure to implement properly the Adjudicator's decision by the grant only of discretionary leave. In that case, it is clear from the report that the application was not made specifically for indefinite leave to remain. It was made for exceptional leave to remain. The argument was that, in all the circumstances, it was not reasonable to do other, in the light of the Adjudicator's findings, than to grant indefinite leave to remain. That argument failed.

[18]This case is different. The application that had been turned down by the Secretary of State was an application for indefinite leave to remain. The Immigration Judge reached his conclusion that there were exceptional circumstances based upon the daughters' education. It would have been open to him to have taken the view that it was not necessary or appropriate to give leave to remain for a period that went beyond that necessary to ensure that they could complete their education in this country. However, he did not put any such limitation expressly in his determination and, as has been properly pointed out by Miss Fisher, the Immigration Judge used the fact that they were only just short of the necessary seven years, which would have resulted in indefinite leave to remain, as one of the factors which weighed in the balance in enabling him to decide as he did.

[19]It seems to me, in those circumstances, that the allowing of the appeal against the refusal to grant indefinite leave to remain meant that the result had to be the grant of indefinite leave to remain, unless the Immigration Judge made some directions or reached some findings which led to a different view being taken. It would have been open to the Secretary of State to have made an application to the Immigration Judge for clarification of the effect of his determination and asked him, if necessary, to make directions so that the Secretary of State could act in a way which was consistent with his determination.

[20]Equally, though I have not gone into this in any detail, it may well be that an application for reconsideration might have been successful, because it is difficult to see that the Immigration Judge was right to regard this as exceptional on the basis that he did, and certainly to regard it as exceptional on the basis that they nearly qualified for the seven year policy to be applied in their favour.

[21]Be that as it may, the result, in my judgment, is that, in the circumstances of this case (and I emphasise that it is the circumstances of this case that dictate this decision; there is nothing which can be regarded as a precedent in this), the result is that the letter granting only discretionary leave was wrong and that the only proper way to put into effect the decision of the Immigration Judge was to grant indefinite leave to remain.

[22]Perhaps the lesson to be learned from this case is that there is a need, where there is a possible doubt as to the appropriate result flowing from a determination, that either party should apply to the Immigration Judge in order to clarify what he actually contended and, if necessary, to ask for specific directions so that they can know precisely what needs to be done. It is clear that in many cases it is not necessary for directions to be given. The result is clear. In my view, in most cases where a specific application has been made and is the subject of appeal, then simply to allow the appeal will be likely to result in the grant of whatever has been applied for by the appellant. Circumstances may justify a lesser grant of whatever sought, but if that to be considered it is, in my view, necessary that the Immigration Judge's views are obtained on that important matter.

[23]For those reasons, and in the circumstances, I propose to grant this application and to make a declaration that the only proper way of putting into effect the decision of the Immigration Judge is to grant all three claimants indefinite leave to remain.

[24]I should add, perhaps, that the mother certainly may not deserve it, but the Secretary of State has only herself to blame for what has occurred, not least because of the appalling delay in dealing with the application originally made in April 2003.

[25]MISS FISHER: Your Lordship, I would ask for costs in this matter.

MR JUSTICE COLLINS: Are you legally aided?

[27]MISS FISHER: No, your Lordship.

MR JUSTICE COLLINS: You have not, I take it, produced a schedule.

[29]MISS FISHER: One has not yet been prepared.

MR JUSTICE COLLINS: Miss Olley, you cannot resist that.

[31]MISS OLLEY: My Lord, the claimants have to fall upon the discretion of the court if no schedule is served.

[32]MR JUSTICE COLLINS: Well, I suppose it had better be subject to detailed assessment if not agreed, but you can have the costs.

[33]MISS FISHER: Thank you, my Lord.

[34]MR JUSTICE COLLINS: But what you cannot have is the cost of preparing this bundle. It contains most of the legislation, as far as I can see.

[35]MISS OLLEY: It is the entire Immigration Act.

[36]MR JUSTICE COLLINS: Yes. You can claim nothing for the cost of copying the Immigration Act. I make that clear for the assistance of the costs judge if that is necessary.