Azizi, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4021 (Admin)

Case No CO/4295/2012[2014] EWHC 4021 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 14 November 2014
Strand
London WC2A 2LL
B e f o r e:
CHRISTOPHER SYMONS QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF AZIZIClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Ltd (a Merrill Corporation Company)8th Floor, 165 Fleet Street, London, EC4A 2DYTel: 020 7421 4043 Fax: 020 7404 1424E-mail: mlsukclient@merrillcorp.com(Official Shorthand Writers to the Court)
Mr A Pretzell (instructed by Lawrence Lupin) appeared for ClaimantMr G Lewis (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: In this matter, Mr and Mrs Azizi and their five children, citizens of Afghanistan, challenge the decision of the Secretary of State for the Home Department made on 24 January 2012 granting the family discretionary leave to remain for a period of three years when it is said that the only proper course open to the Secretary of State was to grant the family indefinite leave to remain.[2]The claim form dated 24 April 2012 initially sought to quash the Secretary of State's decision and "to reconsider the Claimants' case in accordance with the legacy criteria and grant the Claimants indefinite leave to remain". The basis of the argument was that due to delay on part of the Secretary of State, the Claimants' cases had been considered under the new policy guidelines following the closure of the CRD on 20 July 2011 which had resulted in them being given discretionary leave to remain rather than indefinite leave. Had the cases been considered in a timely matter, it is said that all would have received indefinite leave to remain.[3]Following the case of Geraldo v Secretary of State [2013] EWHC 2763 (Admin), amended grounds for judicial review were prepared by Mr Pretzell, who appears for the Claimants before me. These grounds, although dated October 2013, did not apparently find their way to the Secretary of State until October of this year. In Geraldo, the argument based on the fact that had the Secretary of State considered the case in a timely fashion indefinite leave to remain would have been granted was rejected. In the amended grounds, the Claimants no longer sought so to rely. Instead, a new case was raised based on the case of SM & Ors v the Secretary of State [2013] EWHC 1144 (Admin). In that case, Holman J held that the Secretary of State's policy on discretionary leave was unlawful when considered in the light of S.55 of the Borders, Citizenship and Immigration Act 2009 (which I shall call the 2009 Act) and also held that the absence of any consideration of S.55 in the decision making made the decision in that case unlawful.[4]Here Mr Pretzell argues that the Claimants are in the same position as SM & Ors. The decision letter in their case, in the Claimants' case, is silent about S.55 and there is no indication that the Secretary of State had regard to it. Thus he argues the decision made on 24 January 2012 is, therefore, unlawful and should be quashed. I am very much paraphrasing the argument, but that is, in essence, the position. The History[5]Let me go back then to the beginning. There are now five children of the family, Zohal born on 8 December 1997, Elham born on 16 December 1998, Imran born on 1 November 2000, Nohman born on 27 July 2002, and Yusuf born on 24 December 2009. Mrs Azizi and the three oldest children arrived in the UK on 13 May 2002 and claimed asylum.[6]On 28 June 2002, they were given exceptional leave to remain for 12 months. Nohman was born on 27 July 2002. Mr Azizi arrived in the UK on 23 November 2002 and was also given exceptional leave to remain to correspond to the rest of the family, expiring on 28 June 2003. On 24 February 2005, the family were refused leave to remain and an appeal against that decision was dismissed on 25 July 2005. Mrs Azizi had been unwell and various representations were made, culminating in a letter of 5 April 2006 seeking to avoid the family being removed from the United Kingdom. Further letters were written on the family's behalf and eventually, on 17 January 2009, the UK Border Agency wrote to say that the Claimants' cases were in a backlog of older cases.[7]Further letters were written to the Secretary of State, including on 7 October 2010 a letter from the older children explaining their feelings as a result of not having their visas, as they described it. They did not feel free, their father could not work and there were difficulties at school. Further correspondence then followed.[8]As I have said, the CRD closed on 20 July 2011 and was replaced by the Case Assurance and Audit Unit.[9]On 24 January 2012, the decision, the subject of this challenge, was made. It stated:
"Your claim has been reviewed and it has been decided that the Secretary of State's discretion should be exercised in your favour and you, and your dependants listed below, have been granted limited leave to remain in the UK for reasons not covered by the Immigration Rules."
[10]They were given three years discretionary leave to remain expiring on 23 January 2015. I pause there to point out that in a month's time the family will be applying for further leave to remain and that matter will come back before the Secretary of State in any event.[11]There was no indication in the decision letter that the Secretary of State had had regard to S.55 of the 2009 Act, nor were there any reasons as to why the Secretary of State had decided to grant three years discretionary leave to remain rather than indefinite leave to remain. As I have said, judicial review proceedings were started.[12]I turn then to the statutory background and the authorities. I am going to take the statutory background from the case in the Court of Appeal of Alladin [2014] EWCA Civ 1334, and I shall have to come back to this case later. But I am going to quote, as I say, the statutory background from that case and I take that from paragraph 5.[13]S.3 of the Immigration Act 1971 as amended provides that:
"(1)Except as otherwise provided by or under this Act, where a person is not a British citizen - (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period."
Subsequent provisions in S.3 provide for the laying before Parliament of Immigration Rules.[14]Article 3 of the United Nations Convention on the Rights of the Child provides that:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Section 55 of the 2009 Act provides:
"(1)The Secretary of State must make arrangements for ensuring that - (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom... (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality... (3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."
[15]Guidance of the kind referred to in 55(3) was provided in November 2009 in a document entitled "Every Child Matters: Change for Children, statutory guidance to the UK Border Agency on making arrangements to safeguard and promote welfare of children" and issued jointly by the Home Office and the Department for Schools and Families. "Every child matters".[16]Part 2 is entitled "The role of the UK Border Agency in relation to safeguarding and promoting the welfare of children". Paragraph 2.7 states as follows:
"The UK Border Agency must also act according to the following principles: • Every child matters even if they are someone subject to immigration control..."
There are various other bullet points.[17]These paragraphs reflect what Baroness Hale said in ZH (Tanzania) v the Secretary of State [2011] 2 WLR 148 at paragraphs 29 and 33. What she said was:
"What is encompassed in the "best interests of the child"? As the UNHCR says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be 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 which will be severed if the child has to move away."
Paragraph 33:
"We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations."
[18]I have been supplied with the relevant versions of the Home Office policy on discretionary leave. The criteria for granting discretionary leave contained in the first version recognised that where the return of an individual would involve a breach of their right to family life established in the UK, there should be a grant of discretionary leave to remain. Version two contained a similar application. The only amendments to this section as compared with version one are not material.[19]Going on with the authorities, on 8 May 2013, Holman J decided the case of SM & Ors [2013] EWHC 1144 (Admin). That case concerned two issues which were recited by Holman J at paragraph 2. They were these:
"I) Is that policy document [relating to discretionary leave to remain] and instruction capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence? If not, the policy is not lawful, and the decisions under review, which were taken by reference to it, should be reconsidered. II) If the policy is capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence, did the actual decision maker fail to read and apply it in that compliant way? If he did, the decisions should also be reconsidered."
[20]In the light of section 55 and the guidance to which I have referred, Holman J at paragraph 42 of SM said this:
"42.In my view the effect of the language of the policy and instruction document as a whole is to preclude the decision maker from even considering an applicant, whether adult or child, as being eligible for ILR until he or she has completed at least six years of DL. The use of the word "normally" is explained by the reasons I have described and does not of itself admit of any exception or qualification in relation to children. The general words in the introduction are excluded from the consideration of the duration of leave by the clear language of the later passages. 43. If the later passages had referred to "
All adult categories..." and "A person who is an adult..." and "Anyone who is an adult...", and then made different and express provision in relation to children, the policy and instruction could be compliant with section 55. But the language used effectively precludes case specific consideration of the welfare of the child(ren) from the discretionary decision whether to grant immediate ILR or limited DL. It precludes the application of section 55 to that decision and is, in my view, unlawful."[21]He then went onto consider the second issue. That is the issue in relation to the letters in that case. At paragraph 45, he said:
"45.The first letters were very short and formal, merely stating that DL had been granted and enclosing the relevant Immigration Status Documents. Mr Harrison first gave fuller reasons in a letter dated 5 January 2011... in response to a Pre Action Protocol letter. This referred to the withdrawn policy under DP 5/96 which had been withdrawn on 9 December 2008, namely at all times material to this case, and contended that that policy was no longer followed. The letter continued: "
When both JW and TS appeals were allowed under article 8... the appropriate grant of leave of three years was granted by the Secretary of State in line with the Home Office policy on Discretionary Leave. In both the case of JW and her dependant and of TS and her dependants all were granted Discretionary Leave for a period of three years. As such neither was it improper or unreasonable or irrational for the Secretary of State to apply the relevant up to date policy in relation to granting leave under Article 8... the appropriate policy has been followed and applied to your clients case which was a grant of Discretionary Leave in line with their appeals being allowed on grounds of Article 8." 46. Pausing there, in the above passage there is no hint of any case specific consideration of the welfare of each of the children concerned. There is simply reiteration that discretionary leave has been granted "in line with the ...policy", and that the policy had been applied without differentiation to both the adults (JW and TS) and their dependant children." Holman J then concluded in his paragraph 57:
"In my view the relevant 2009 Discretionary Leave policy and instruction document is unlawful. It effectively precludes case specific consideration of the welfare of the child concerned in making the discretionary decision whether to grant limited DL or ILR. Further, and contrary to the submissions of Ms Broadfoot, that is the way senior officials at the UKBA intend the policy to be applied, at all events save in an "exceptional case" which "very rarely arises if at all"
. The policy and instruction fail to give proper effect to the statutory duty under section 55. Even if the policy can be read in the way contended for by Ms Broadfoot (but not by the senior official, Mr Gallagher), that is not the way in which the actual decision maker, Mr Harrison, read and applied it. He, too, would graft on a need for exceptional or compelling features."[22]So says Mr Pretzell in his skeleton argument, and again I am not doing it justice, this case is the same in as much as there has been no proper consideration of section 55, no reasons given, and, therefore, I should quash this decision and send it back to the Secretary of State to try again.[23]However, last month on 16 October 2014, the Court of Appeal considered the case of Alladin, conjoined appeals but I can concentrate on that case.[24]The matter came before Floyd LJ. In paragraph 1 of that decision, he set out the issue:
"The principal issue in these two appeals is whether the decisions of the Secretary of State for the Home Department to give limited (discretionary) leave to remain as opposed to indefinite leave to remain are unlawful because they were given in breach of the Secretary of State's duty under Section 55 of the Borders Citizenship and Immigration Act 2009."
[25]He set out the terms of the decision letter in that case at paragraph 22. What was simply said was:
"A decision has been taken that it would be appropriate, because of the particular circumstances of your client's case, to grant him/her leave to enter/remain on a discretionary basis outside the Immigration Rules for a specified period."
Again, very short and without reasons.[26]However, in Alladin there was a supplementary decision letter and some evidence from a civil servant dealing with the Secretary of State's policy. Mr Lewis, who has appeared before me on the part of the Secretary of State, fairly makes the point that similar evidence could have been put in front of me had these points in issue been rehearsed rather earlier, but, in any event, on the basis that the evidence which would have been provided would be the same, he submits it would not add anything.[27]It is necessary for me to quote, I am afraid, at some length from the judgment of Floyd LJ because it is directly pertinent to the decision that I have to make in this case. I start at paragraph 27:
"Following the grant of permission and shortly before the judicial review application was to be heard, UKBA wrote to the applicant and her family on 4 April 2013. The letter is headed "
Supplementary Decision Letter" and states that the further submissions made had been treated as a request to reconsider the decision of 15 June 2011. The letter first dealt with some points which had been made about the welfare of the applicant's second child, saying that he was now doing very well and that there were no concerns at school. It then reviewed the background saying. "In reaching her decision, the Secretary of State had regard to the length of residence of your family, particularly your children... The eldest of the four children... is now 12 years old and has lived in the United Kingdom since the age of 2 years, a period now of over 9 years. [The second child] is now aged 10 and has lived in the United Kingdom since he was twelve months old. They are both attending school. [The third child], who was born in the United Kingdom is now seven years old and it is assumed that she too is attending school. It is accepted that they have established a private life in the UK and that any interference with this private life by removing them from the UK would have been disproportionate. The youngest child... who was also born in the United Kingdom is now aged three. His strength of connection to the United Kingdom is considered to be less significant than his older siblings. Section 55 of the [2009 Act]... places a duty on the Secretary of State to safeguard and promote the welfare of children in the UK. One of the primary duties of the UK Border Agency is to ensure controlled, fair migration by applying and enforcing the Immigration Acts and the Immigration Rules including the removal from the United Kingdom persons who have no legal entitlement to remain in the United Kingdom, whilst granting protection to those who need it. The UK Border Agency will identify and act on any concerns about the welfare of children with whom they come into contact. To this regard, the position of your children... has been considered in light of the requirements on the UK Border Agency as defined under Section 55 of the 2009 Act, and section 11 of the Children Act 2004 and also in the light of the Supreme Court ruling in the case of ZH (Tanzania) [2011] UKSC 4. In light of your children's strength of connections to the United Kingdom, and with regard to the best interests of your children under Section 55 of the BCIA 2009, a decision was made on 15 June 2011 to grant discretionary leave on Article 8 grounds. Careful consideration has been given to all your representations, and in particular the material referred to above that was submitted on 18 January 2012. As noted above, the SSHD accepts that the circumstances of your case warrant a grant of discretionary leave. However, the SSHD does not consider that the circumstances of your case are so exceptional as to warrant a departure from the discretionary leave policy and an immediate grant of ILR. The Secretary of State does not consider that your children's welfare is better safeguarded or promoted by the grant of ILR as opposed to three years DL. Save for the length of leave, there is limited substantive difference between the benefits of being granted ILR over DL. Your children have access to health care and education in the UK in the same way as a UK national child. There would be no difference in this respect if they had been granted ILR. Similarly, in terms of safeguarding, there would be no difference. Furthermore, three years is a substantial period of time, during which their status is secure and there is no evidence that their well being is being adversely affected. When that period of time comes to an end it will be open to you to make a further application in which all relevant considerations will be taken into account. Even if it could be said that there might be some difference in welfare terms that flow from the grant of one status over another, there are strong policy reasons to justify the grant of DL to you and your children at this stage, instead of ILR. The Secretary of State must ensure that the grant of ILR does not become a means whereby those who cannot meet the Immigration Rules proceed immediately into the permanent resident category without being able to review their circumstances at a later date to determine whether a further grant of leave is still appropriate. To grant ILR immediately would discourage the use of lawful routes to residence and undermines the SSHD's ability to manage migration in a manner which she considers to be in the best interests of society as a whole. The SSHD considers that the public policy considerations could only be outweighed in an exceptional case. Once your DL expires and if at this point a further application for leave is made, the SSHD will again consider your client's position under her statutory obligations existing at the time. In this way your situation will be considered and her circumstances will be fully taken into account. A grant of ILR would assume that it will be in your best interests to remain in the UK without further consideration, which may not be the case. As such it is considered that by granting DL, the SSHD has executed her duties properly and thoroughly and has considered your client's best interests pursuant to her duty under s55..." 28. In short, the Secretary of State was saying that, in the circumstances of these particular applicants, the difference between DLR and ILR was not sufficiently great to outweigh the policy considerations for maintaining a staged or graduated policy of granting ILR. 29. In Ms Alladin's case, Mr Gallagher, a civil servant within the Operational Policy and Rules Unit in the Home Office, made a witness statement in which he explained the approach to granting leave outside the rules, namely discretionary leave, leave to remain and indefinite leave to remain. DLR was most frequently granted where there were grounds for a claim based on human rights. In developing a system of DLR the Secretary of State sought to manage progression to permanent settlement in a way that acknowledges the interests of the country as a whole. In particular she was concerned to ensure that those who had ignored or could not meet the requirements of the immigration rules did not proceed immediately into the permanent residence category ahead of those who have to demonstrate their compliance, and without being able to review their circumstances later to determine whether a further grant of leave was still appropriate. 30. Hence DLR on Article 8 grounds was normally granted for a period of 30 months, followed by a review to see whether a further period of DLR was justified. It was only after a second period of DLR that an application for ILR was considered. The Secretary of State considered that this struck a fair balance between the rights of those who could not be removed for human rights reasons and the wider interests of society as a whole. Those interests included the fact that the principle of lawful compliance, on which the rest of the immigration system is based, is to be upheld. The principle that permanent residence should be based on the accumulation of periods of leave was also firmly established. In this way it was possible to promote lawful compliance by preventing unfavourable comparisons between those who are granted settlement within the Immigration Rules and those who seek settlement following a long period of overstaying. For the first group compliance with the Immigration Rules may have involved not having been dependent on public funds, lawful residence in the UK for a specified period in a category leading to settlement (i.e. not having entered as a temporary visitor) sufficient knowledge of language and life in the UK demonstrated by passing a test. To grant immediate settlement on the basis of overstaying would be to trivialise the requirement to use the lawful routes into the UK and undermine the Secretary of State's ability to manage migration in a manner which the Government considers to be in the interests of society as a whole. 31. In paragraph 30 Mr Gallagher stated that there was no difference in terms of safeguarding from harm and access to facilities necessary for a healthy childhood between those children here with DLR and those with ILR."[28]In that case, the Claimants argued three points and two of them are relevant to us. The first was that the Secretary of State's policy under which the Appellants were given leave to remain was unlawful and, in consequence, the decisions were unlawful. Secondly, the decisions were, in any event, unlawful because they were given in breach of the duty under S.55 of the 2009 Act. The Secretary of State in the Alladin case accepted that, following SM, the policy in relation to discretionary leave to remain was unlawful and that is apparent from paragraph 53 of the judgment in Alladin.[29]The learned

judge then turned to consider the argument of the Secretary of State at paragraphs 54 and 55:

"54. The real question, submitted Ms Olley [who was appearing for the Secretary of State] was whether the illegality of the policy infected the decisions taken in this case. That would not be the case if the decisions properly reflected section 55 of the 2009 Act and Article 8 ECHR. She submitted that section 55 added little in the present cases where the appellants have been granted discretionary leave. The fundamental aspects of the welfare of the children were already catered for. Their position is not precarious. There was no evidence of any detriment suffered by them as a result of the grant of a period of DLR as opposed to an immediate grant of ILR. Even if it could be argued that the grant of ILR provided a higher level of protection than DLR, that still did not mean that the grant of ILR was obligatory. As Baroness Hale made clear in ZH the best interests of the child are a primary consideration, but not the only consideration. They can be outweighed by other considerations. 55. Relying on the evidence of Mr Gallagher [the civil servant who provided some evidence to the court], Ms Olley submits that there is an important public interest consideration at stake. This was to be weighed against the small marginal benefit if any as between DLR and ILR. She stresses that at no point in the proceedings has there been any convincing argument, let alone evidence that the grant of DLR has caused the appellant children to be prejudiced in any way."
Floyd LJ turned then to the court's decision and dealt with that at paragraph 57:
"The authorities on the exercise of the duty under section 55 are clear, and are now well understood as applying both to the decision as to whether to grant leave to remain at all, and to decisions concerning the duration of leave. There is no issue about that in the present case, and nothing that I say is to be taken as detracting in any way from the statements of high authority, such as those I have cited from in ZH. 58. That said, however, I should not grant judicial review in the present cases unless the appellants can show a real prospect that the Secretary of State might, if directed to retake the decisions according to the guidance, come to a different decision. Put another way, have the appellants demonstrated that the error of law on which they rely (be it following an inflexible policy or failing to have regard to the section 55 duty) is a material one? 59. There can, in my judgment, be no doubt that the Secretary of State is entitled in principle to adopt a staged approach to settlement. Even where children are the applicants, it does not follow that the Secretary of State is bound, on a first application, to grant ILR. The considerations outlined in the evidence of Mr Gallagher amount to factors which are worthy of consideration, and deserve to be placed in the balance after the best interests and welfare of the children have been considered. It follows that an applicant who wishes to persuade the Secretary of State to grant her leave for a period longer than that provided for by the staged settlement policy has to do more than point to the fact that she is a child."
I can then move to paragraph 66 of Floyd LJ's judgment:
"Thus, although the illegality of the policy is accepted, I am unable to accept that it follows that there is a realistic prospect that the Secretary of State might come to a different decision if she reconsidered her decision in the case of Alladin. That is because the reasoning in the 4 April 2013 letter is, as it seems to me, not open to any realistic criticism and would be the reasoning that she would adopt if we were to require her to retake the decision."
Then I go to paragraph 69:
"It follows that there is either no purpose in or no basis for quashing the decisions in the case of Alladin. There was no material illegality on the facts of this case in the grant of discretionary leave to remain for three years."
Then the last sentence of paragraph 70:
"Consistently with the absence of any request for ILR, none of the material sent to the UKBA in support of the application pointed to any disadvantage associated with the grant of DLR as opposed to ILR."
He dismissed the appeals and the decisions stood. Arguments[30]Mr Pretzell points to the supplementary letter in the Alladin case which distinguishes it from the Azizi case. It was that letter that saved that case and here there is nothing to suggest that S.55 was in mind. The issue of materiality is different here and the case of SM is what binds me.[31]He submits that in this case, the Secretary of State should have had regard to the children's letter and their concerns and that there is no evidence that she did any such thing. She had to take into account each child on the basis that every child matters. There was no individual consideration of each child in this case and that was essential, as was the need to make clear that there had been that proper consideration. The decision was not in accord with the law and should, therefore, be quashed.[32]Mr Lewis says, on behalf the Secretary of State, on the basis of the policy set out in the Alladin case, it is virtually certain that this case would be decided in precisely the same way with discretionary leave being granted rather than indefinite leave. While he accepts that following SM the decision in this case was not lawful, there is no material error since the decision was the same as if lawfully taken or, to put in a different way, in the exercise of my discretion, I should not quash the decision. He also points to the fact, which I have already alluded to, that the Secretary of State is going to have to reconsider this case in any event following the application which is bound to be made in a month's time, 28 days before the expiry of the discretionary leave to remain.[33]He submits that the absence of a supplementary decision letter here is not fatal. If the Secretary of State is required to consider this case again, it is quite clear the decision will be the same.[34]It is obvious that the decision was made in the light of Article 8 and that does not need to be spelled out.[35]Thus, Mr Lewis says, while there were errors of law, correcting them would not lead to a different result. If relief was to be granted, it would have no practical effect. The supplementary decision letter is a red herring as what matters is the policy to be applied, and that is clear from the evidence provided in the case of Alladin.[36]On the children's letter, Mr Lewis argues that there was nothing compelling or convincing in the letter which suggests that there was any prejudice resulting from a grant of discretionary leave rather than indefinite leave.[37]Finally, he says the witness statements which were served yesterday do not add anything, having been prepared a very long time after the decision was made. They cannot go to the issue as to whether the decision was wrong in law. I should say that I agree with that and I have not had regard to those witness statements.[38]In reply, Mr Pretzell submitted that the Secretary of State seemed to be saying that there is no individual consideration given to any of these cases, and that is apparent from the fact that he now submits they are all decided in the same way. That was the effect of the submission being made on behalf of the Secretary of State.[39]He points to the considerable delay in this case, which is apparent from what I have set out above. That was relevant to this decision. Had the matter been considered in a timely fashion, then indefinite leave to remain would have been granted, and that is matter for the Secretary of State to take into account. Conclusions and Decision[40]I start from the concession made that the decision in this case was unlawful and that followed from the decision in the case of SM. That being the case, unless I am satisfied that the error was immaterial or I decide that, in the exercise of my discretion, I should not grant relief, then this decision should be quashed.[41]The facts of this case are very similar to the facts in Alladin. In that case, there were four children aged 13, 12, 9 and 4. The family had first arrived in 2003. The decision to grant discretionary leave was made in 2011. The supplementary decision letter in that case contained much generic material which went well beyond covering that case alone. I have in mind what was said and set out in paragraph 27 of the judgment of Floyd LJ, which I have already referred to. The evidence given by Mr Gallagher was also generic and of general application.[42]The children's letter in this case predated the grant of discretionary leave and the complaints made were largely dealt with by the grant of discretionary leave. Their father is now able to work and is, I am told, now working. They can leave the country and return. The grant of a period of three years discretionary leave is not insubstantial. I am aware that there may be a limbo period from the end of the leave until a further decision is taken, but it does not seem to me that that detracts from the main point, namely that a grant of discretionary leave to remain does not greatly differ, so far as the children are concerned, with a grant of indefinite leave to remain.[43]In my judgment, there are no such material differences between this case and Alladin to make it remotely likely that a different approach to that set out would be adopted. As Floyd LJ said, and as I respectfully adopt:
"I should not grant judicial review in the present cases unless the [claimants] can show a real prospect that the Secretary of State might, if directed to retake the decisions according to the guidance, come to a different decision. Put another way, have the [claimants] demonstrated that the error of law on which they rely... is a material one?"
[44]I am satisfied that in this case there is no such real prospect, and I do not find that the error was material. On those grounds alone, I should have refused to quash the decision. But in addition here, the Secretary of State is shortly going to reconsider this case in any event. The Claimants are entitled to put before her everything they pray in aid to persuade her to grant indefinite leave to remain. They can point to the delays and the fact that, arguably, the delay led to the decision to grant discretionary leave to remain rather than indefinite leave to remain. They can put forward any disadvantages the children have as a result of not having indefinite leave to remain. In those circumstances, it does not seem to me to serve any useful purpose to quash the decision.[45]Therefore, in the exercise of my discretion, I decline to quash the decision letter in this case. This claim will, therefore, be dismissed.[46]THE DEPUTY JUDGE: I will hear counsel on any consequential orders.[47]MR LEWIS: My Lord, I am grateful for that. I do apply for the Secretary of State's costs in this matter. Does my Lord have a copy of the schedule? I have a spare if my Lord does not have one.[48]THE DEPUTY JUDGE: I do not have one, no.[49]MR LEWIS: I will pass it. I should check also whether my learned friend has received a copy.[50]MR PRETZELL: I have. Thank you.[51]MR LEWIS: My Lord, I will deal with the principle of costs first and then I will come onto quantum if necessary.[52]I do say that costs should follow the event in the ordinary way here. I would also invite the court to have to regard to the fact that this claim did start out life as a standard challenge on legitimate expectation grounds in the main to the status of this case in the legacy. The way that the case has been put more recently on the basis of SM, that is a recent amendment which, as the court will have noted, it is the Treasury Solicitors' case that it was not advised of that amendment until October of this year.[53]THE DEPUTY JUDGE: Mr Lewis, let me see if we can cut this short. Your decision was an unlawful decision. Whether everybody realised that at the time or not, that was the case.[54]MR LEWIS: Indeed.[55]THE DEPUTY JUDGE: So the reason that this matter has not been quashed is because of the recent decision of Alladin. That is where we really are. So while Mr Pretzell has not got the relief he sought, he has been dealing with an unlawful decision. That is why you have got a problem in persuading me that I ought to award you your costs. It may be a very good reason why Mr Pretzell should not get his costs, but do try and persuade me if you would like to.[56]MR LEWIS: What I will say on that, my Lord, is that the bulk of these costs were incurred responding to the claim as originally pleaded, which was in relation to a series of grounds alleging deficiencies in the handling of this case in the legacy. In the overall scheme of the litigation, only a small proportion, my Lord, of the costs has, in fact, been incurred dealing with the SM and then the Alladin point.[57]If my Lord is inclined to take account of the court's exercise of discretion in this matter when it also comes to costs, my suggestion would be that the reasonable and fair approach in those circumstances might me to apply a discount on the costs that are sought by the Secretary of State. My Lord will see that the sum sought is, in my submission, modest for a one day substantive judicial review. It is of £6,645.[58]Doing the best I can, my Lord, I would seek a costs £4,000 in the Secretary of State's favour in order to deal with the costs of dealing with the claim as originally pleaded, which was, in my respectful submission, unarguable and shown to be unarguable in the life of the litigation, but also taking account of the court's concern that it was found ultimately here that the decision was unlawful, but only at a late stage in the litigation.[59]THE DEPUTY JUDGE: The way I am thinking at the moment is had the Secretary of State set out clearly that she had taken into account section 55 and dealt with all the interests of the children, then, yes, it might still have been brought, but your position would be rather different, or would have been rather different.[60]MR LEWIS: I would say respectfully, my Lord, that even if the section 55 assessment had been impeccable in this decision, this claim would have been brought because it was part of a wave of cases that were brought making what were found to be ultimately unarguable points about there having been a legitimate expectation created by parliamentary statements that certain legacy cases would be dealt with by a certain time in 2011 and other grounds being made relating to that central submission.[61]So I say, my Lord, respectfully, I put it as highly as to say that it is virtually certain, even if the section 55 analysis had been impeccable, that this claim would have been brought and costs would have been incurred by the Secretary of State dealing with those grounds, which were the grounds in their entirety in this claim as originally drafted.[62]MR PRETZELL: My Lord, my learned friend is clearly a fan of the term "a virtual certainty". I do not seek to know or profess to know what may or may not have happened if the Secretary of State's decision of 24 January 2012 had been phrased any differently.[63]What I can say is that permission in this matter was granted by Deputy High Court Judge David Pittaway QC on 16 January 2014 on the basis of the amended grounds. The Secretary of State's position now is that she is not aware of those amended grounds, despite the fact that she was represented at that hearing.[64]It is, therefore, my submission that it is inconceivable that since 16 January 2014 and leading up to today, the position is put forward that the bulk of the work of the Secretary of State was incurred prior to the amendment of the grounds being something that she became aware of. So I have to say that I reject that submission and I would ask you to reject it.[65]As far as the detailed grounds of resistance are concerned, dated 18 July 2014, that is when the Secretary of State focused her mind on what she believed the arguments in this matter were. As those instructing me pointed out in a response of 1 October 2014, she had it wrong. The original claim was not being pursued. The very focused and detailed amended grounds, and in particular paragraph 10 of those grounds of which your Lordship will be aware of, dealing quite clearly with SM and TM had been put forward. That is the basis upon which permission had been granted.[66]So this was a hard fought matter, my Lord. We have won one point. We have lost one point. I say the appropriate order is no order as to costs. I say it cannot be any other way. So unless I can assist my Lord, those are my submissions on the issue of costs.[67]I do have an application to make in respect of permission to appeal on the materiality point, but I will deal with that very briefly once your Lordship has made a decision in respect of the issue of costs.[68]MR LEWIS: I was not counsel at the permission hearing, my Lord, so I cannot give any confirmation either way of the basis upon which the judge might have granted permission. All that I can do, doing the best I can on the evidence available, is that there was no indication in that order that permission was granted because there was considered to be anything in the section 55 point, even if it was before the judge at that time.[69]I can only say that, on the basis of the evidence that I have seen, my Lord, and I have checked the position with the Treasury Solicitor, the Treasury Solicitor tells me that they were not aware of the amended grounds until October of this year.[70]I do note that when detailed grounds of defence were drafted earlier this year without mentioning or picking up on any section 55 point that might have, it is now said, was made at the time, there was no indication from the Claimants' solicitors that they considered the detailed grounds of defence to be inadequate or incomplete for not dealing with that point. I say that that rather supports my position that what unfortunately appears to have happened here is that that ground was not properly brought to the Secretary of State's attention until October of this year.[71]THE DEPUTY JUDGE: Thank you.[72]Well, I take the view that the appropriate order here is no order as to costs. It seems to me that both sides have won part of the case. We do not know what would have happened had the Secretary of State properly rehearsed the reasons given and properly dealt with section 55. I am not going to try and resolve the issue as to who knew what when. It seems to me now it is a rather barren exercise. So my order will be no order as to costs.[73]Mr Pretzell.[74]MR PRETZELL: My Lord, I am grateful for that indication.[75]As I indicated to your Lordship, there is a point of appeal that I seek to draw to your Lordship's attention. It is Floyd LJ's judgment in paragraph 60 which deals with the importance of the supplementary refusal letter and the fact that the Court of Appeal in Alladin made it clear that the reason for finding that there was no materiality was because they could not fault the Secretary of State's approach to the best interests of the children in the supplementary refusal letter.[76]Your Lordship has indicated that it would not have made a difference, in any event, in the context of materiality. I would respectfully seek permission to appeal your Lordship's decision on that particular point because it is speculative to now suggest what may or may not have happened had the Secretary of State reached a proper decision.[77]In particular, I would point out the supplementary decision letter of 4 April 2013 deals with, specifically in terms, the concept of ILR and the possibility that ILR may have been appropriate to have been awarded, but in that case was not. So that clearly distinguishes the case of Alladin and that is the basis upon which I seek permission to appeal further, my Lord.[78]THE DEPUTY JUDGE: Well, Mr Pretzell, I am not going to give you permission. It seems to me that this case is on all fours with Alladin. Had the evidence been put forward in this case, it would have been the evidence Mr Gallagher gave. It seems to me that that makes it clear that these cases are indistinguishable, or at least sufficiently indistinguishable to follow that case. So I refuse leave.[79]MR PRETZELL: My Lord, just a final matter. There is a funding certificate in place. I am wondering whether your Lordship has a copy of that on file. We would like an assessment of the costs in preparing this appeal in the usual way.[80]THE DEPUTY JUDGE: Certainly. You may have that.[81]MR PRETZELL: I am grateful.[82]THE DEPUTY JUDGE: Thank you both very much for your assistance.