Abraham & Ors v Secretary of State for Home Department [2012] EWHC 4438 (Admin)

Case No CO/10831/2011

[2012] EWHC 4438 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 3 August 2012

Before

HIS HONOUR JUDGE ANTHONY THORNTON QC

Sitting as a Judge of the Administrative Court

Between

Patrick Taiwo AbrahamClaimant

Folakemi Sherry AbrahamClaimant

SClaimant

DKClaimant

DOClaimant

Secretary of State for Home DepartmentDefendant

Ms Atim Oji (instructed by Nathan Aaron Solicitors) for Claimant

Mr Jonathan Hall (instructed by the Treasury Solicitor) for Defendant

JUDGMENT

His Honour Judge Anthony Thornton QC:

Introduction

[1]Mr Patrick Taiwo Abraham, his wife Mrs Folakemi Abraham, their twin sons S and DK (“the twins”) and their youngest son DO seek orders and declarations against the defendant, the Secretary of State for the Home Department (“the SoS”). The precise relief claimed can only be formulated once appropriate consideration has been given and findings have been made about the alleged failure of the SoS to grant the Abraham family’s applications made on or about 25 September 2011 for the entry clearance into the United Kingdom that each claimed to be entitled to. These failures are alleged to have arisen as a result of the SoS’s breaches of section 87(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) since it is alleged that they constitute a failure to give effect to a direction of a judge of the First-tier Tribunal (Immigration and Asylum Chamber) (“FtT”) in a decision promulgated on 19 July 2011. The claim form seeking judicial review was sealed on 9 November 2011 and permission to apply for judicial review was granted by Collins J on 24 January 2012.

[2]It is not possible to consider these applications without first considering the complex factual and procedural background to this case. Before doing so, I must deal with two procedural issues. The first is as to the identity of the claimants. The intended claimants are Mr and Mrs Abraham and their three sons. Only Mr Abraham is named as a claimant and the claim form merely refers to the other members of the Abraham family as “+4”. Moreover, no litigation friend has been appointed for each of the three boys. The twins are now aged 13 and the youngest child is aged 11. All five members of the family should be named as individual claimants in these immigration judicial review proceedings and, since it is customary to anonymise the names of minors in such proceedings, each of the children’s names should be anonymised and a litigation friend should be appointed for each child who may be either of their parents. Factual Background

[3]Mr and Mrs Abraham and their three children are Nigerian nationals. Mr Abraham first came to the UK as a visitor on 5 February 2001 with leave to remain until 26 July 2001 but he returned to Nigeria on 16 May 2001. He returned to the UK on 7 July 2001 as a visitor with leave to remain until 31 January 2002. Mrs Abraham first came to the UK on 23 December 2001 with her three children to undertake studies at Jeff Wooler College in London on a student visa and the children came with her on dependent’s visas. All these visas were valid until March 2004. On 21 January, Mr Abraham was granted further leave to remain as the dependent of his wife until 31 March 2004. The leaves to remain were extended on the same respective bases until 31 October 2006. Mr Abraham had, from the start, undertaken voluntary employment with the Redeemed Christian Church of God, a registered charity, as an events co-ordinator and youth career development officer and was based at its central office in Knebworth. In October 2006, he was ordained as a Minister of that Church and was located at the RCCG’s Centre of Joy parish in Thamesmead, London. Following his application for leave to remain as a minister of religion dated 16 October 2006, he was granted leave to remain as a Tier 2 (Minister of Religion) Migrant until 31 October 2007 and this was extended on 17 October 2007 until 31 October 2010. Mrs Abraham and their three sons applied for leave to remain as Mr Abraham’s dependents on 16 October 2006 and this was initially granted on 7 November 2006 until 31 October 2007. This leave was extended on 17 October 2007 until 31 October 2010.

[4]Mr Abraham and his family were well settled in Thameside in 2010 and he was buying the family house on a mortgage with annual declared earnings of between £20,000 and £24,000. His church intended to sponsor his application and the Pastor-in-Charge provided a reference for him stating that he was employed as an Assistant Pastor and was seeking a further two-year extension of his leave to remain and that Mrs Abraham was a Deaconess at the church and was involved with its women’s group. Mrs Abraham had, meanwhile, continued with her educational studies and had graduated from Greenwich University in 2008. She had also set up her own travel agency in 2006 which, by May 2010, had a turnover of £468,000 which produced a net profit of £2,649 and paid her a salary of £6,400. This agency was particularly concerned with organising package holidays to the Holy Land and conferences for corporate bodies and churches. The twins were at an independent boarding school in Norfolk and the youngest child attended a primary school in London. Mr Abraham’s Application for Leave to Remain

[5]Since Mr Abraham’s existing leave to remain expired on 31 October 2010, he applied for further leave to remain as follows:(1) He hand delivered an application for indefinite leave to remain for himself and his four dependents on 25 October 2010. The application was made on the basis that Mr Abraham had completed 4 years in the UK in an employment category of the points based system in his mistaken belief that he was eligible to apply on that basis. However, he was not eligible to apply in this category because he had not previously been granted leave to remain in an employment category but as a minister of religion and, moreover, the relevant period had been increased to 5 years in March 2006. His mistake was explained to him in his interview with the UKBA official that he met on 25 October 2010 when handing in his application. He was advised to submit a fresh application as a Tier 2 (Minister of Religion) Migrant.

(2) Mr Abraham therefore submitted a second application as advised on 29 October 2010. However, he needed the church to sponsor him which required it to register as a licensed sponsor. Mr Abraham therefore filled in the relevant section of his application form by stating that his sponsoring church had not yet been granted a sponsorship licence and by providing the sponsorship licence application reference number that the church had been given when applying for it. He also provided a letter from the pastor of his church evidencing the church’s intention to sponsor him, other documents showing that the church had applied for a sponsorship licence and bank statements showing that he met the Tier 2 financial maintenance requirements. When submitting this application, Mr Abraham by oversight did not send with it the family’s passports and the invalid application was returned to him on 19 November 2010.

(3) The letter returning the second application was received at the Abraham household on 23 November 2010 but Mr Abraham did not learn of it until a few days later when he returned home from a ministry. He re-submitted the application with the family’s passports on 8 December 2010. Unfortunately, he did not also add details of the church’s sponsorship licence or a copy of his certificate of sponsorship and he also omitted to update his bank statements for the period between 29 October 2010 and 8 December 2010.

[6]The application was refused in a refusal decision letter dated 27 January 2011 (“the refusal decision”) on the grounds that he had not provided a sponsorship certificate or up to date bank statement evidence that he was able to fulfil the Tier 2 maintenance requirements. There was no consideration of any other basis for granting Mr Abraham leave to remain since no other basis had not been applied for. Thus, there was no consideration of whether he should be granted leave to remain on a discretionary basis. The refusal decision was solely based on the application of the points-based application system and on Mr Abraham’s inability to provide a sponsorship certificate, albeit for no apparent fault of his own, and his error in not updating his bank statements. This was appropriate so far as the application was concerned but the reasons why Mr Abraham found himself on 1 November 2010, nearly ten years after his arrival in the UK, liable to be removed on and the hardship that that would cause all five Abraham family members was highly relevant to the SoS’s subsequent failure to make a structured and detailed assessment of all the Abraham family circumstances before issuing a removal decision.

[7]The refusal decision stated that Mr Abraham had no right of appeal since his application for further leave had been made after his leave to remain had expired on 31 October 2010. The decision letter further informed him that he had no right to stay in the UK and that, if he did not leave voluntarily, he would be liable to be prosecuted and compulsorily removed to Nigeria. There was no detailed evidence as to the steps that the Abrahams took between the date of the refusal decision, 27 January 2011, and the 10 and 11 March 2011 when the removal documents were served. Mr and Mrs Abraham did, however, start to make arrangements for the family to leave the UK and Mrs Abraham made arrangements for her business to be run in her absence. Mr and Mrs Abraham did not, at that stage, take any legal advice. Removal and removal decisions

[8]Mr and Mrs Abraham and their children were issued with removal decisions under section 10 of the Immigration and Asylum Act 1999. Section 10(1)(a) provides that a person who is not a British citizen may be removed from the UK in accordance with directions given by an immigration officer if, in a case such as Mr Abraham’s, that person remains beyond the time limited by the leave. The removal decision and the subsequent steps taken to implement that decision including, in particular the information about each person being considered for removal that should be obtained and considered, the structured nature and content of the decision-making process and whether the individual should be detained pending removal are the subject of detailed provisions in the Immigration Rules and in UKBA policies, particularly those contained in Immigration Directorate Instructions Including, currently, the Enforcement Instructions Guidance manual. .

[9]In addition, in the cases of Mrs Abraham and the three children, section 10(3) is also material. This section provides that removal directions may not be given to remove them unless the SoS has given each of them written notice of the intention to remove them. Each of the five family members must be considered separately and, in relation to Mrs Abraham and each of the three children, the EIG provides: “50.13. Section 10(1) (c) - Removal of family members When considering cases involving children regard must be given to the duty imposed by S.55 of the Borders, Citizenship and Immigration Act 2009 with respect to safeguarding and promoting the welfare of children. Additional information is set out in chapter 45 of the Enforcement Instructions and Guidance on family cases. The following factors should also be taken into account:• regard to the duty to safeguard and promote the welfare of any child affected by UKBA actions.

• the ability of the spouse to maintain himself and any children in the UK, or to be maintained by relatives and friends in the UK without charge to public funds, not merely for a short period, but for the foreseeable future, and

• in the case of a child of school age, the effect of removal on his education, and

• the practicability of any plans for the child's care and maintenance in this country if one or both his parents were removed, and

• any representations made by or on behalf of the spouse or child. Directions may not be given under section 10(1)(c) above unless the person concerned has been given written warning of such an intention that such action is intended (i.e. served with Enforcement Instructions and Guidance and IS151A Parts 1 & 2). This warning should be given at as early a stage as possible, and ideally before the first person is actually removed. (emphasis added)”

• regard to the duty to safeguard and promote the welfare of any child affected by UKBA actions.

• in the case of a child of school age, the effect of removal on his education, and

• the practicability of any plans for the child's care and maintenance in this country if one or both his parents were removed, and

• any representations made by or on behalf of the spouse or child.

[10]Without any prior warning, the SoS served on Mr Abraham the following documents:(1) ANotice to a Person Liable to Removal dated Thursday 10 March 2011. This notice informed Mr Abraham that the immigration officer who had sent the letter but who was not identified in it was satisfied that Mr Abraham was someone for whom removal directions could be given since he had remained in the UK beyond the time limited by his previous leave to remain.

(2) A Notice of Immigration Decision (“the removal decision”) dated Friday 11 March 2011, again unsigned, which informed him that a decision had been taken to remove him, that he was entitled to appeal on the statutory grounds set out in section 82(1) of the Act but only after he had left the UK and that, if he did not leave the UK voluntarily, directions for his removal would be given. One of those statutory grounds was that the decision was unlawful because it was incompatible with his rights under the European Convention on Human Rights, a ground which gave him an in-country right of appeal if he had made a Human Rights claim and had served it on the SoS before he had left the UK.

(3) A Notice of Temporary Admission to a Person who is Liable to be Detained dated Friday 11 March 2011 authorising his temporary admission.

(4) Removal Directions requiring him to be removed with his baggage on the flight to Nigeria that was to leave Heathrow at 22.20 hours on Sunday 13 March 2011. Separate notices of temporary admission and removal directions were served on Mrs Abraham and on each of the three children.

[11]The removal direction decisions were taken pursuant to section 10 of the Immigration and Asylum Act 1999, Schedule II of the Immigration Act 1971 and the regulations made under that section and the relevant IDs issued by the SoS The Immigration (Removal Directions) Regulations 2000 and the guidance given as to removal, enforcement and related matters in the EIDs. . Three separate decisions were enshrined in these documents. These were the immigration decisions that each member of the Abraham family was liable to be removed dated 10 March 2011 and the decisions to grant each family member temporary admission and the decisions to issue removal directions were dated 11 March 2011. The critical decision for each family member was the immigration decision and, before that decision was taken, the decision-maker had to consider and have regard to the particular circumstances of each person who was being considered for removal See paragraphs 24 – 26 & 31 below for a discussion of this obligation. . The decision to place each family member on temporary admission was a separate and distinct decision from the decision to remove and, so long as the conditions for temporary admission remained, a family member could be placed on or remain on temporary admission even if that family member was not subject to either a removal decision or removal directions.

[12]Mr and Mrs Abraham considered that they had no alternative but to comply with the law and leave the UK forthwith on the designated flight to Nigeria. They therefore picked up the twins from their boarding school, the family packed up their belongings and made arrangements for their house to be looked after and all five family members presented themselves for removal on the designated flight. They achieved all of this in the permitted period of 48 hours between receipt of the removal directions and the time of departure on the stipulated flight.

[13]The UKBA has never explained why the Abraham family was only given 48 hours over a weekend to pack up and terminate their lives in the UK where they had been living for the previous approximately ten years and where the three children had lived since they were toddlers. The following particular matters give rise to concern:(1) The way in which removal was undertaken did not follow established UKBA procedures in a number of respects. In particular, no home visit appears to have taken place. As a result, the Abraham family was not given any prior warning that they would be served with removal directions and the other associated papers.

(2) The liable to remove notice was issued in such a hurry that the SoS’s officials overlooked their obligation to consider and apply paragraph 395C of the Immigration Rules and section 55 of the Border, Citizenship & Immigration Act 2009 (“the 2009 Act”) before taking the decision to remove the family and to issue removal directions.

(3) The timing of the service of the various documents was very inconvenient. These documents were served on a Friday with removal timed for the following Sunday evening. Thus, only 48 hours’ notice was given, almost all of which fell over the weekend.

(4) The Abraham family was not given any reasonable opportunity to obtain legal advice or to serve human rights or other claims on the SoS.

[14]The Abrahams family were particularly vulnerable to the rapid removal strategy that they were subjected to since they were an unusually compliant family whose members were prepared to leave as directed despite the enormous strain that that rapid removal undoubtedly put them under. This compliance had the effect of denying them the opportunity of stopping or delaying removal and the service of professionally prepared representations prior to their departure and denying each of them an in-country right of appeal. Temporary Admission

[15]In accordance with established practice, each member of the Abraham family was served with notice of temporary admission with the removal decision documents. Temporary admission is the statutory description given to those who are being considered for, amongst other decisions, a decision to be removed from the UK on reasonable suspicion that they are someone in respect of whom removal directions can be given because they are overstayers or who are pending removal. Such persons may be detained or may be released from detention on conditions relating to such matters as residence and reporting. Temporary admission provides the SoS with the power to detain or regulate their movements whilst permitting their release from detention. It also ensured that their continued presence in the UK would not incur sanctions whilst the relevant conditions attached to their temporary admission were observed. It is possible for those subject to temporary admission to remain in that state for an appreciable period of time. It follows that such persons may be subject to temporary admission even if there is no current decision to remove them so long as, in the type of case involved here, they are overstayers and there are reasonable grounds to consider that they might be removed The Abraham Family’s Appeal to the FtT

[16]Lodging the appeal. Mr Abraham was unable to contact a solicitor until after the family’s arrival in Lagos Nigeria. On arrival, he contacted and instructed the firm of Nathan Aaron who initially sent representations dated 15 March 2011 to the SoS, namely to the UK Border Agency on behalf of all five members of the Abraham family relating to both the refusal decision and the removal directions. The firm also served on the FtT on behalf of Mr and Mrs Abraham a notice of appeal, grounds of appeal and a statement of additional grounds all of which were dated 17 March 2011. The appeal was solely directed against the SoS’s refusal decision. On 11 April 2011, the SoS served a response rejecting the representations submitted on behalf of Mr Abraham. The appeal was heard on 7 July 2011 and the immigration judge’s decision was promulgated on 19 July 2011.

[17]The appeal. The appeal, grounds and additional grounds documents must be read together in order to ascertain the subject-matter of Mr and Mrs Abraham’s appeal. An appeal to the FtT may only be brought against “an immigration decision” on specified grounds and it may only allow the appeal “in so far” as the tribunal thinks that the decision was not in accordance with the law or that a discretion that was exercised in making the decision should have been exercised differently See sections 82(1), 84, 85 and 86 of the 2002 Act. . The notice of appeal clearly identified the only Home Office decision that was being appealed by quoting the reference number and date of service of the Home Office refusal decision dated 27 January 2011. refusing Mr Abraham’s third application for leave to remain. Paragraph 1 of the grounds of appeal and the first paragraph of the statement of additional grounds both confirmed that the appeal was being brought against that refusal decision. The appeal was, therefore, seeking to reverse the SoS’s refusal decision and a grant to Mr Abraham of leave to remain as a Tier 2 (Minister of Religion) Migrant or, in the alternative, a grant to him of discretionary leave to remain outside the Immigration Rules. The pleaded grounds were that Mr Abraham had a legitimate expectation to be granted leave, that the SoS’s refusal had infringed the Abraham family’s article 8 rights and that the SoS had not considered the application properly or addressed the hardship arising from the effects of the mistakes made in submitting the three applications. In counsel’s skeleton argument served before the hearing, these grounds were elaborated upon and it is clear from that document that the sole decision being appealed was the refusal decision dated 27 January 2010.

[18]The refusal decision was an immigration decision so that it could be appealed to the FtT and it was lodged in time since it was an out-of-country appeal and was lodged within 28 days of Mr Abraham’s departure from the UK See section 82(2)(e) of the 2002 Act and Rule 7(2)(a) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. .

[19]In-country or out-of-country appeal. The immigration judge first had to consider whether the appeal could proceed at all since the Abraham family were represented but were not present and were now situated in Nigeria. The judge pointed out that the case was unusual since the appeal included a human rights claim which had been made after the appellants had left the country. Had that claim been made before they had left the UK, they would have had an in-country right of appeal. However, since the appellants had chosen not to remain as overstayers, they were not located in-country. The judge took the pragmatic decision to proceed with the appeal because the Abrahams’ counsel, in an appeal in which the SoS was not represented, indicated that the matter would be dealt with by way only of submissions.

[20]It is clear that the appeal was an out-of-country appeal and the Abrahams would not have been permitted to attend the hearing even if they were able to do so nor, indeed, would they have been granted entry clearance to attend it.

[21]The approach of the immigration judge. Although Mr and Mrs Abraham were only appealing the SoS’s refusal decision dated 27 January 2011, the immigration judge’s decision stated unequivocally that the only decision that they were appealing was the removal decision. This is clear from paragraph 5 of the decision which stated:

“5. On the 10 March 2011 the appellants were served with notices informing them of their liability to be removed under s10 of the Immigration and Asylum Act 1999 and on the 11 March 2011 with notices that a decision had been made to remove them from the UK together with removal directions for the 13 March. They were granted temporary admission. Their leave having expired there was no ‘in-country’ right of appeal and they left the UK on 13 March 2011 in accordance with the removal directions. It is that decision that they now appeal.”

[22]Paragraph 6 of the decision stated that that appeal had been brought on the grounds set out in the notice of appeal and the statement of additional grounds. The decision treated those grounds as being that the removal decision did not accord with the Abrahams’ legitimate expectation, was unfair and breached their article 8 rights and that the SoS should have exercised discretion outside the Immigration Rules. This would have been a correct approach to an appeal against the refusal decision since these were the grounds that Mr and Mrs Abraham’s grounds had been put forward in support of their appeal against that decision. However, the only one of those grounds that was relevant to an appeal against the removal directions was that that decision breached their human rights. Notwithstanding that, the decision addressed the other grounds of appeal in the context of the removal decision. The overall conclusion reached was that the removal decision was not unfair and was in that respect in accordance with the law and that it did not breach Mr and Mrs Abraham’s or their family members’ article 8 rights.

[23]The decision then turned to a new ground that had not been raised by the Abrahams. It stated:

“Paragraph 395C 27. There is however another issue. [Counsel for Mr and Mrs Abraham] did not take the point and in fairness I mentioned it to her only briefly. Having thought about it further however I can see no reason why the Secretary of State should not have considered the matter under paragraph 395C of the Rules. She made a direction under s10 of the 2002 Act. Before she made that direction she was required to have regard to all relevant factors know to her including those set out in paragraph 395C. She did have at least a certain amount of highly relevant information, including, in particular, the length of time the family had been in the country and the fact that the appellants had 3 children all of whom could be presumed to have been in the middle of the school term. There is no evidence before me that she did consider this paragraph. 28. Additionally, the appellants rely on the fact that as far as the children are concerned the Secretary of State appears to have given no consideration to section 55 of the Borders, Citizenship & Immigration Act 2009 which she is now required to do. 29. In the light of the above factors I find that the decision of the Secretary of State was not in accordance with the law. CONCLUSION 30. The appellants did not meet the requirements of the Immigration Rules and the decision did not breach their Article 8 rights. However, the decision was wrong in law because I am not satisfied that the [SoS] considered relevant factors under paragraph 395C of the Immigration Rules and s.55 of the Borders, Citizenship & Immigration Act 2009 as she was required to do. DECISION 31. I allow the appeal of both appellants to the extent that the decision in each case was wrong in law.”

Paragraph 395C of the IR and section 55 of the 2009 Act. CONCLUSION DECISION Paragraph 395C of the IR and section 55 of the 2009 Act.

[24]The FtT decision decides in clear terms that the removal decision was not in accordance with the law because the decision maker was required to consider, but failed to consider, the matters listed in paragraph 395C of the Immigration Rules and section 55 of the Borders, Citizenship & Immigration Act (“the Act of 2009”). This finding and decision was therefore to the effect that the removal decision was fatally flawed because they did not take account of any, or certainly many, of the considerations that they should have taken account that are provided for by paragraph 395C and section 55. The immigration judge decided that, as a matter of law, it was an essential requirement that those considerations should be structured into the decision-making process and that, if they are not, as was held to be the case with this decision, the decisions were fatally flawed. In those circumstances, it was not necessary for, or open to, the immigration judge to substitute his own discretion for that of the decision-maker since, on the basis of his finding that no consideration was given to these matters, the appeal from that decision had to be allowed on the basis that the decision was fundamentally flawed and not in accordance with the law.

[25]Paragraph 395C of the IR explained. This conclusion arises from the nature of the obligation to have regard to paragraph 395C and section 55. Paragraph 395C has recently been removed from the Immigration Rules See paragraph 27 below. but it was in force in March 2011 when the removal decision was taken. Paragraph 395C provided as follows:

“395CBefore a decision under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person’s behalf.” (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person’s behalf.”

[26]The way that paragraph 395C should be used was explained by Burnton

[2011] EWCA Civ 811

, CA. LJ in TE v SSHD in this way:

“19. … paragraph 395C is only relevant has no entitlement to remain in this country under any other provision of the Immigration Rules, or indeed of any applicable legislation. Its immediate context is paragraphs 395A and 395B, and section 10 of the 199 Act. It applies to persons who are liable to administrative removal. Absent any reason why they should not be removed, they may be. Paragraph 395C is a helpful list of factors to be considered by the decision maker when deciding whether, although the applicant has no right to be here, he should not be removed. If he is not to be removed, normally it will be appropriate to grant leave to remain. The process is not inaptly described as weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain.”

[27]Deletion of paragraph 395C from the Immigration Rules. This paragraph was removed from the Immigration Rules with effect from 13 February 2012. The explanation for this removal is spelt out in the Statement of Changes in Immigration Rules HC 1733 ordered by the House of Commons to be printed 19 January 2012. :

“7.8 For the majority of migrants who have an application for leave to remain refused there are no additional factors relevant to remove and the Secretary of State’s view is that if there are reasons why a person should not be removed, the onus should be on them to make the relevant application rather than require the Secretary of State to have the responsibility of identifying and considering all factors known to her and identifying those which may be relevant. Paragraph 395C is therefore being deleted and the UK Border Agency is changing its processes so that refusal and removal directions can be made as required in the judgment of the Court of Appeal in Sapkota R (on the application of Sapkota) v Secretary of State for the Home Department [2011] EWCA Civ 1320, CA. .”

[28]In Sapkota, the Court of Appeal found that a removal decision should normally be made following a refusal of leave to remain. The only difference between the decision-making process since the removal of paragraph 395C from the Immigration Rules compared to the same decision-making process required in the case of Mr Abraham and his family in March 2011 is that, although the considerations that should be made the subject of a structured decision-making process are the same, it is for the person who is potentially to be removed to identify them rather than for the decision-maker to search them out. Clearly, under the current post-paragraph 395C regime, it will be desirable, and in a case such as Mr Abraham’s necessary, to provide the potential removed person with an opportunity to make representations before the removal decision is taken even if there are no children who could be affected by the decision whose interests and welfare must be taken into account in any event.

[29]Section 55 of the 2009 Act explained. Section 55 of the 2009 Act provides that the SoS must make arrangements for ensuring that any immigration function, particularly any immigration decision-making process and immigration decision, is discharged having regard to the need to safeguard and promote the welfare of children who are affected by that decision and are in the UK. The obligation imposed on an immigration decision-maker by section 55 was explained in detail in ZH (Tanzania)

[2011] UKSC 4

, SC. .The obligation requires the decision-maker to give primary consideration to the best interests of each child directly affected by, in this instance, the removal decisions. Since three children were directly affected by these decisions, the best interests of each needed to be considered separately as well as collectively. This obligation imposes on the decision-maker a duty to identify what each child’s best interests required and then to decide whether these considerations are outweighed by any other considerations.

[30]This process of giving primary consideration to each child’s best interests requires a structured decision-making process that, in this case, should have been factored into the structured decision-making process required by paragraph 395C. The ultimate decision does not necessarily have to be in conformity with those interests so long as the decision-maker considered each child’s best interests first and did not regard any other interests as inherently more significant. The ZH decision provides an indication of what a decision-maker should take into account when undertaking this exercise. The matters referred to in that decision are not exhaustive and ZH stresses that each child’s own views of what is in his or her best interest should be ascertained and considered to the extent possible which may entail the child having separate representation or that the child should be interviewed This highlights the significance in this case of there not having been a home visit by the appropriate UKBA official prior to the removal decisions being taken. That visit, had it taken place, would have highlighted the possible need also to undertake a visit to the twins’ boarding school to interview each of them there. . Other factors relevant to this particular decision-making process would include the level of the child’s integration in this country and the length of absence from the other country, where and with whom the child is to live and the arrangements for looking after the child in the other country and the strength of the child’s relationships with parents or other family members and of his or her integration into the community in this country. It would also be highly relevant to ascertain the affects that a move would have on each child’s education and the disruption or interference with that education and on his or her general mental and physical health.

[31]Overall conclusion. It can be seen therefore that, in deciding that the decision-maker did not consider paragraph 395C or section 55, the immigration judge was making a finding of considerable significance. It was to the effect that the decision-maker did not undertake a structured decision-making process that factored into that process all relevant considerations of the kind identified in paragraph 395C and section 55. The removal decisions were, in other words, ones which no reasonable decision-maker could have taken since they failed to take account of a range of factors and, in the case of the three children, failed to give those factors primary consideration. The decisions were, to use the language of judicial review, Wednesbury unreasonable and fatally flawed. They were, therefore, unlawful, they had no life or operative validity of their own, they could not be remedied by a supplemental decision no part of them could be relied upon when any subsequent immigration decision affecting any or all of the Abraham family was being taken. Difficulties raised by the FtT appeal decision.

[32]Despite its clear-cut conclusion and the clarity of the decision itself, there are a number of difficulties about the FtT appeal decision. These are: (1) The reasons appear to be dealing exclusively with an appeal against the removal decision which had not been appealed and do not appear to address the refusal decision which had been appealed. This difficulty is highlighted in Mr and Mrs Abraham’s solicitors' letters before claim dated 28 September and 12 October 2011 which both stated:

“Our clients appealed against the Secretary of State’s refusal to grant him and his dependents leave to remain in the UK as a Tier 2 (Minister of Religion) Migrant. His appeal to the First-tier Tribunal was heard on 7th July 2011 before Immigration Judge Woolley who subsequently allowed the appeal.”

It is not clear, therefore, whether or not the appeal against the refusal decision was decided and what the status of the refusal decision was in the light of the immigration judge’s overall decision that he allowed the appeals of both Mr and Mrs Abrahams. (2) It is not clear what the status was of findings about the content of the removal decisions given that those decisions had not being appealed and their inclusion in the appeal had not been the subject of an amendment or a formal direction of the judge. (3) If the decision was valid, it is not clear what its effect was. The reasons stated that the removal decisions were not in accordance with the law and the decision themselves stated that the appeal was allowed “to the extent” that the removal decisions were wrong in law. The wording suggests, on a narrow reading, that the removal decisions were only partially reversed and it does not make it clear what the consequences were of the immigration judge’s decision. (4) The decision does not make it clear what if any effect should be given to the article 8 reasoning and the conclusion that removal would not breach the family’s article 8 rights. There are several difficulties with that part of the decision. Firstly, it was not necessary for the immigration judge to consider whether the removal decision breached the family’s article 8 rights at all because he also decided that that decision was not in accordance with the law and, it is to be expected, not one to which had effect or to which any legal consequences should attach. Secondly, the consideration of the relationship between the removal decision and the family’s human rights was not an issue that was raised by the appeal and the Abraham’s counsel had not agreed to this issue forming part of the immigration judge’s agenda or to being an issue that he should decide. Thirdly, the decision that the removal decision did not breach the family’s human rights did not lie easily with the decision that the same decision was not in accordance with the law on the grounds that it did not take account of what were, in the main, their article 8 rights.

[33]The SoS was not represented at the hearing of the FtT appeal and, although she had lost, there was no attempt made to appeal the decision despite the several difficulties with it that I have highlighted. It is, however, a decision of considerable importance and significance to the Abraham family and since it purports to allow an appeal from an immigration decision of the SoS which was not challenged on appeal, it would be very surprising if it was found to have no practical consequences for them. I will have to decide what its true meaning and effect are when considering whether the Abraham family members are entitled to any remedy for the SoS’s apparent disregard of the FtT decision. What the FtT Decision Decided

[34]The removal decision – paragraph 395C and section 55. The FtT is given jurisdiction to decide issues and to hear an appeal from a decision of the SoS which have not been referred to the tribunal by the appellant. This jurisdiction is provided by section 85(1) which states that:

“85 Matters to be considered An appeal under section 82(1) of the 2002 Act against a decision shall be treated by the tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).”

It follows that the immigration judge had jurisdiction to address an appeal against the removal decision. The judge raised the issue himself in these terms: There is however another issue. [Counsel for Mr and Mrs Abraham] did not take the point and in fairness I mentioned it to her only briefly. Having thought about it further however I can see no reason why the Secretary of State should not have considered the matter under paragraph 395C of the Rules. The judge also raised the section 55 point. Thus, the judge, in addressing the paragraph 395C and section 55 issues in relation to the removal decisions, was acting within his jurisdiction.

[35]Removal decision – Immigration Rules and Human Rights. The judge made findings, or appeared to make findings, that the removal decisions were not unfair, were not to be treated as being not in accordance with the law in that respect and did not breach the Abraham family’s human rights. The FtT decision did not explain why it addressed these issues and why in addition it did not also address them in relation to the refusal decision. Mr Abraham’s counsel clearly argued the appeal as if it was an appeal solely against the refusal decision so that, strictly speaking, the judge should have decided that part of the appeal as well as deciding an appeal against the removal decisions. It does not make any difference to the FtT decision whether the judge mistakenly thought the appeal was solely concerned with the removal decisions or decided that as he was allowing the appeal against the removal decisions he could not or need not also address the refusal decision appeal. What is clear is that he did not, and did not purport to, decide the refusal decision appeal and although that might have enabled Mr Abraham to appeal to the Upper Tribunal on the ground that the immigration judge should also have decided his refusal decision appeal, no appeal was brought by him against that failure and that deficiency cannot now be rectified.

[36]That leaves the purported findings in relation to the Immigration Rules and to human rights in the context of the removal decisions. These findings are not binding and, indeed, are to be treated as having no weight or relevance. This is because:(1) The findings relate to the removal decisions which the FtT decision had, as an initial step, concluded was fatally flawed and unlawful which had led to the decision that the appeal would be allowed. But for those findings, the appeal would have been dismissed.

(2) Those findings are wholly inconsistent with the overall and operative that the appeal should be dismissed.

(3) Those findings, if they had any significance, would amount to the exercise of discretion by the immigration judge which he could only have had if he had concluded that the SoS’s exercise of discretion was incorrect. However, he had found that the SoS’s exercise of discretion was so flawed as to be unlawful and, in those circumstances, it was not open to the immigration judge to substitute his decision for that of the SoS.

(4) These issues were not raised in argument or relied on by Mr Abraham’s counsel and were not raised by the judge with counsel during the hearing of the appeal. Thus, Mr Abraham’s counsel did not have an opportunity to address the judge about these issues because they formed no part of the hearing agenda and were first raised and then decided in the FtT’s decision. Thus, these issues did not need to be decided and, strictly speaking, should not have been decided since they did not arise following the overall decision that the removal decisions were wrong in law. Since those decisions were wrong in law, the judge no longer had jurisdiction to decide the Immigration Rules and human rights issues. In short, the findings were not merely what used to be referred to as “obiter dicta” (extraneous findings), they should not have been made at all since they fell outside the jurisdiction of the immigration judge See section 86(3) of the 2002 Act. .

[37]The decision. The decision allowed the appeal “to the extent that the decisions were “wrong in law” following the finding that they were “not in accordance with the law”. It was contended on behalf of the SoS that that wording has the effect that the decision remained in place in relation to the immigration judge’s findings that the Abraham family’s human rights were not breached.

[38]That conclusion is erroneous. The wording I have referred to was only used by the immigration judge because the statutory jurisdiction of the tribunal is limited and, in this case, confined his decision to deciding whether:

“the [removal] decision is otherwise not in accordance with the law”

See section 84(1) of the 2002 Act, particularly section 84(1)(e). . Since the decision was found to be one that was not in accordance with the law, he expressed the decision in the way he did. In that context, he was deciding that the decision in its entirety was unlawful. This is because, having decided that it was not I accordance with the law, he was bound to allow the appeal since section 86(3) provides: “(3) The tribunal must allow the appeal in so far as it thinks that- A decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including the immigration rules), … (4) For the purposes of subsection (3), a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.” 39. Did the Decision include a Direction?

[39]The tribunal has the power, but not the duty, to give a direction for the purpose of giving effect to its decision if it allows an appeal See section 87(1) of the 2002 Act. . Neither the Act nor the Asylum and Immigration Tribunal Rules require a direction to be given in any particular form. In this case, the finding that the removal decision was “not in accordance with the law” and was “wrong in law” amounts to a direction to the SoS to treat the Abraham family as if the removal decision was unlawful. I therefore consider that this FtT decision does contain a section 87 direction to that effect in addition to the decision that the appeal should be allowed. Effect of the FtT Appeal Decisions and the Immigration Judge’s Direction

[40]The effect of the decision is that the removal decisions were invalid and unlawful and, in consequence, the Abraham family’s removal from the UK was unlawful and they are each now entitled to be treated as if no removal decisions had ever been made. That does not mean that the Abraham family are now entitled to be put back into the same position as they were in prior to the decisions being taken since events have moved on and it is no longer possible to replicate that prior situation. For example, reliance can no longer be placed in any new decision on paragraph 395C since that paragraph has now been removed from the Immigration Rules without any transitional provisions being inserted to preserve its wording in transitional cases. What is required, in any future decision, is for the decision-maker to take account of and give effect to the fact that each member of the Abraham family is to be considered as someone who was unlawfully removed from the UK and who has been the subject of an lawful removal decision as the basis for being removed from the UK on 13 March 2011. Mr Abraham application for entry clearance.

[41]Entry clearance and leave to remain applications. The FtT decision was promulgated on 7 July 2011 and, as soon as he read that decision, Mr Abraham formed the understandable conclusion that he and his family had won their appeal and that that success entitled them to return forthwith to the UK. However, to his surprise, he heard nothing from the UKBA or the Home Office or the British High Commission in Lagos informing him as to when and how the family might return to the UK. He therefore emailed a letter to the High Commission in Lagos on 25 September 2011 which stated that he and his family had made all necessary arrangements to get back on their feet and to rebuild their shattered family life in the UK. The letter invited the Consulate Officer to inform him what steps the family needed to take and what documents the High Commission required from them to enable them to return to the UK. Remarkably, the letter went unanswered. The Abrahams’ solicitor wrote two letters dated 28 September 2011 and 12 October 2011 to the UKBA’s Specialist Appeals Team and informed it that the effect of the FtT decision was that the Abraham family now had, or should be granted, leave to remain and, hence, entry clearance. Again, these letters went unanswered.

[42]Judicial review. The solicitors then filed this judicial review claim on 9 November 2011. Essentially, the claim seeks orders and declarations to the effect that the family should be issued with entry clearance immediately and that the failure to grant entry clearance is a breach of section 87(2) of the 2002 Act, unlawful, unfair and a breach of the family’s article 8 rights. A claim that the SoS’s failings have brought untold hardship on the family members is also made. This would appear to be pleaded as the foundation stone of claims for damages by each family member. An acknowledgement of service was filed on 13 December 2011 and permission to apply for judicial review was granted by Collins J on 24 January 2012.

[43]The SoS’s supplemental decision of 12 December 2011. On the day before the acknowledgement of service was filed, the SoS served on the Abraham’s solicitor a letter which stated that it was supplemental to the decision dated 10 March 2011 to remove the five family members from the UK. The UKBA did not notify anyone that it would be sending this letter before it was sent, it never sought from the Abraham family or their solicitors any further submissions or evidence that the family might wish to rely upon and to have taken into consideration before the decision taken by the letter was received and it has never provided an explanation as to why the letter was issued at the time and in the form that it was issued.

[44]The letter explained itself as being supplemental to the removal decision of 10 March 2011. It stated that the immigration judge had allowed the Abrahams’ appeal to the extent that the SoS had failed to consider the family’s circumstances under paragraph 395C or the children’s best interests under section 55. The letter than purported to consider the family’s and the children’s circumstances under these two provisions and then concluded that:

“The decision to refuse your client’s leave has now been fully assessed with reference to section 55 …, Article 8 … and paragraph 395C … . I find that your client’s family’s rights have were (sic) not infringed by the decision to remove them as the decision was proportionate to the legitimate need to maintain an effective Immigration control. The decision to refuse your client application is now in accordance with law.”

The decision to refuse your client application is now in accordance with law.”

[45]The validity and status of the supplemental decision. The letter is somewhat confused. It purported to be supplemental to the decision of 10 March 2011 which the immigration judge had found was wrong in law. Whatever the scope of that FtT decision, it must at the very least have had the effect of setting aside or rendering nugatory the decision of 10 March 2011 and, therefore, the letter could not have been supplementary to the earlier decision which had already been decided to be both dead and lifeless. The letter also purported to be supplemental to a removal decision even though a removal decision could only have been made about, and served on, a person who was physically located in the UK when the decision, or supplemental decision was made. It further purported to provide retrospectively the necessary support for the decision of 10 March 2011 even though that decision could only lawfully have been taken in the first place if the considerations present in the later letter had already been taken into account as part of the decision-making process leading to the earlier decision. Finally, the decision was issued without first giving the Abraham family an opportunity to provide further information about each family member and submissions as to whether a further decision, and if so what further decision, should be taken.

[46]The decision concluded by asserting that, as a result of the decision it contained, the earlier decision of 10 March 2011 was now in accordance with the law. That suggested that the decision-maker considered that the retrospective consideration now given to the Abraham family’s circumstances, which the immigration judge had found had not been given prior to the earlier decision being taken but which should have been given, sufficed to resurrect, or to provide life support to, the decision of 10 March 2011. That was not possible.

[47]For all those reasons, the December decision was nugatory and of no effect. Furthermore, the earlier removal decisions were dead and it could not be brought back to life by this decision-making sleight of hand.

[48]The SoS’s re-service of removal decisions and supplemental decision. On 13 February 2012, the deletion of paragraph 395C from the Immigration Rules as part of the deletion of the entire block of Administrative Removal paragraphs 395A – F took effect The amendment of the IRs was contained in the Statement of Changes in Immigration Rules, HC 1733 ordered to be printed by the House of Commons on 19 January 2012. . On 15 February 2012, the SoS served on the Abraham family’s solicitors a number of documents. Service was effected without any prior notification that these documents were to be served. The documents were:(1) The SoS’s detailed grounds of defence dated 15 February;

(2) The identical supplementary decision dated 12 December 2012 that had been served previously.

(3) Five copies of the Liable to Removal and Immigration Decision notices that had been served in March 2011 save that the original dates of, respectively, 10 and 11 March 2011 had been replaced with the date 15 February 2012. Each claimant was named in one pair of these documents.

[49]The SoS gave no explanation for the service of these documents. An explanation was finally provided in the SoS’s counsel’s final written closing submissions in these terms:

“… the Secretary of State agrees that the decision made for the reasons given on 12 December 2011 (re-served on 15 February 2012, together with a notice giving rise to a right of appeal 1) is a new decision and is different from the decision of 10 March 2011. ¹The decision of 12 December 2011 was originally served to supplement the earlier s10 decision of 10 March 2011. However, the Secretary of State subsequently decided to make a new s10 decision in 15 February 2012 which would give rise to a new out-of-country right of appeal; she did this by re-serving the decision of 12 December 2012 (made after IJ Wooley’s determination and correctly considering s.55 and paragraph 395C). The decision was taken not to change the date of the 12 December 2011 letter because paragraph 395C had by then been deleted from the Immigration Rules w/e/f 13 February 2012). By maintaining the date of the decision to 12 December 2012, the Claimants were not prejudiced by the change to the Rules.”

[50]It would appear therefore, that the SoS contends that:(1) The removal decisions of 10 March 2011, having been served as the first step in removing the Abraham family from the UK, had been withdrawn on 15 February 2012 even though the Abraham family were removed on 13 March 2011 in consequence of the withdrawn decision.

(2) The removal decision was removed because it had been held to be one that was not in accordance with the law by the FtT decision of 19 July 2011. That decision had been based on a finding that the decision-maker had not considered the factors set out in paragraph 395C or those that s55 that had to be taken into account.

(3) The SoS had issued a supplemental decision dated 12 December 2011 that was stated to be supplemental to the removal decision of 10 March 2011 that was now withdrawn.

(4) The SoS issued a new removal decision (without stating that the 10 March 2011 decision was being withdrawn) dated 16 February 2012 accompanied by the supplemental decision dated 12 December 2011. The SoS informed the Abraham family after the purported re-service of the supplemental decision that it was to be taken as having been re- re-issued on 16 February 2012 even though it remain dated 12 December 2011.

(5) The re-issue on 16 February 2012 of the supplemental decision dated 12 December 2011 was necessitated by the withdrawal of paragraph 395C with effect from 13 February 2012. By serving a new decision dated 16 February 2012 accompanied by a supplemental decision dated 12 December 2011, the composite re-issued decision was issued, or was to be considered as having been issued, under paragraph 395C even though that paragraph had been withdrawn.

(6) The Abraham family was given the right to an out-of-country appeal from the new decision dated 16 February 2012 by virtue of the service of the Immigration Decision document dated 16 February 2012.

(7) These measures had the effect of removing all prejudice resulting from the SoS’s original reliance on a removal decision which was not in accordance with the law.

[51]This somewhat convoluted reasoning is intended to show that an immigration decision in the form of a removal decision was issued on 16 February 2012 and which generated a right of appeal which, if successful, would enable the Abraham family to return to the UK. This reasoning is not sustainable for these reasons:(1) A removal decision must be taken before removal has occurred and, to take effect, it must be served on an individual in the UK who has yet to be removed. This is because the removal decision takes its statutory force from s10 of the 1999 Act which provides for, and authorises the removal of, people who may be removed in the future not those who have already been removed. A removal decision cannot be taken retrospectively to legitimise an unauthorised removal that has already taken place.

(2) Whatever the decision that was taken on 16 February 2012 was, it was not an immigration decision since it was not a decision which falls within the statutory definition of an immigration decision, namely in this case “a decision that a person is to be removed” See section 82(2)(g) of the 2002 Act. . That definition refers to a decision to remove in the future someone who is currently located within the UK. This decision was, if it was a decision at all, one that retrospectively authorised the removal of each Abraham from the UK one year after they had been removed from the UK without lawful authority.

(3) The decision is suggested to be one that comprised the removal notice dated 16 February 2012 and the supplemental decision document that was issued on and dated 12 December 2011 and then re-issued on 16 February 2012 without any changes to its wording, any further consideration of its contents or any attached explanation. The document however still states on its face that it is supplemental to a removal decision dated 10 March 2011 and it is still dated 12 December 2011. It follows as a matter of fact and law that the removal decision document dated 16 February 2012 evidences a different decision to the supplemental decision and the two cannot be merged into a single decision merely on the subsequent say-so of counsel repeating his instructions in a closing submission.

(4) Paragraph 395C of the Immigration Rules could not be applicable to the decision-making process undertaken in February 2012 since that paragraph had been repealed before the new decision-making process had been undertaken and was no longer in force on the date of that the decision was taken. It is not possible to take a valid decision by reference to a repealed provision of the Immigration Rules merely by back-dating the decision document to a date that pre-dated that repeal 53. Judicial Review Grounds

[52]Ms Oji, on behalf of the Abraham family, contended that each member of the family should now be granted entry clearance into the UK since their removal was unlawful and, as a result of that unlawful removal, each has been deprived of an in-country right of appeal against both the refusal and removal decisions. Moreover, no subsequent valid decision has been taken which would render their return futile.

[53]Mr Hall, on behalf of the SoS, contended that the court cannot now declare that the Abraham family have a right to enter the UK since they each lost the right to remain in the UK on 1 November 2010 when Mr Abraham’s right to remain expired and was not renewed. If they were permitted to return to the UK, they would have no right except the right to appeal the inevitable fresh removal decision which would be an out-of-country removal decision which, but for the passage of time, they already had since the new decision taken on 16 February 2012, gave them a right of an out-of-country appeal. Discussion

[54]The fundamental starting point is, as I have already decided, that the Abraham family were removed from the UK unlawfully because the only basis for legally removing them, being the removal decisions dated 10 March 2011, were unlawful and not in accordance with the law. It would not be futile for each to return to the UK, if that is their wish, since they would not, as soon as they returned, be liable to be re-returned to Nigeria. This is because they are still subject to temporary admission given that the decision to place them on temporary admission was lawful and has never been revoked or withdrawn. It would not now be lawful for the SoS to revoke that temporary admission decision unless and until a fresh lawful removal decision is taken and such a decision could only be given once the family are back in the UK. Only then could a structured, fully considered and lawful decision be taken to remove them. Furthermore, the Abraham family have outstanding claims for discretionary leave to remain on human rights, immigration rules and legitimate expectation grounds which can, and no doubt will, be served on the SoS once they have returned to the UK and these claims have, at least, reasonable prospects of success. Each family member would also have, in the event that fresh removal decisions were taken or their claims were rejected by the SoS, an in-country right of appeal.

[55]It follows that the Abraham family’s return to the UK would not be futile. However, it would not be right for me to direct that each family member should be granted entry clearance, leave to enter or leave to remain. These decisions are ones which, in accordance with the law, can only be taken by the SoS and her officials and are subject to the exercise of discretion by the decision-maker, albeit on lawful grounds. What I can however do is to make a number of declarations as to the present situation which must be taken into account by any decision-maker when any member of the Abraham family applies for entry clearance and, if they return to the UK, any subsequent immigration decision or appeal is being considered. I will also give each member of the Abraham family permission to apply to the Administrative Court. This will allow any of them to make an application for further if it is considered on their behalf that the SoS is not giving full effect to any of the declarations that I have made.

DECISION

[56]Subject to any submissions to the contrary, the necessary declarations that I will make are as follows:(1) The removal decision contained in the Notice of Immigration served on each claimant and dated 11 March 2011 is unlawful and may not be relied on for any purpose.

(2) No lawful immigration decision was taken by the letter dated 12 December 2011, whether as served in December 2011 or as re-served on either the 15 or 16 February 2012.

(3) The decision of the First-tier Tribunal dated 19 July 2011 decided, and only decided, that the immigration decisions dated 11 March 2011 were wrong in law. That decision also directed the Secretary of State to act thereafter on the basis that the immigration decisions were not in accordance with the law.

(4) The First-tier Tribunal did not decide the first claimant’s appeal against the decision dated 27 January 2011.

(5) The temporary admission granted to each claimant on 11 March 2011 has not been revoked.

(6) The Secretary of State has not yet considered or decided each claimant’s application for entry clearance or for leave to enter. Any consideration hereafter of an application for entry clearance or for leave to enter should take into account the declarations made herein. I will also grant each claimant permission to apply on notice in relation to any matter arising from this judgment or the declarations herein.

[57]To regularise the procedural position that I dealt with in paragraph 2 above, I will also direct:(1) Mrs Abraham should be named as second claimant.

(2) Mr and Mrs Abraham’s three children should be named as third, fourth and fifth claimants and their names should be anonymised so that the eldest child, the third claimant, should be known as S; the middle child, the fourth claimant, should be known as DK; and the youngest child, the fifth claimant, should be known as DO.

(3) Mr and Mrs Abraham are by 3 September 2012 to nominate one of them to be the litigation friend of S, DK and DO. This should be done by their solicitors lodging the appropriate forms with the Administrative Court. HH Judge Anthony Thornton QC