SEVEN YEAR CHILD CONCESSIONARY POLICY - COURT OF APPEAL REFUSES TO WIDEN THE TRANSITIONARY PROVISIONS
The Court of Appeal has within the last week in the case of Secretary of State for the Home Department v Rahman, Abbassi, Munir [2011] EWCA Civ 814 decided that the withdrawn seven year child concessionary policy does not apply to families who having lived in the United Kingdom for 7years failed to rely on the policy prior to its withdrawal. The Court has also sought to rule out reliance on the policy in relation to families who despite having lived in the UK for several years were a few months short of acquiring the relevant 7years at the time of withdrawal of the policy.
THE POLICY
DP 5/96- the seven year child concession policy - set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and had lived continuously to the age of seven or over, or where, having come to the UK at an early age, they had accumulated seven years or more continuous residence. A grant of indefinite leave to remain would be granted to those who fulfilled the criteria of the policy.
However on 9 December 2008 the policy was formally withdrawn by the Secretary of State. The then Immigration Minister, Mr Woolas announced in a written ministerial statement (Hansard 9.12.08, column 49WS) that the withdrawal was to ensure a more consistent approach to all cases involving children and to prevent a benefit accruing in particular to overstayers or people who were unlawfully present in the UK. It was considered that the original purpose and need for the concession had been overtaken by the Human Rights Act and changes to the immigration rules. The Government’s position is therefore that all cases involving families with dependant children with long residence will now be considered under the Immigration Rules and Article 8 of the European Convention on Human Rights (ECHR) pursuant to the Human Rights Act 1998.
Following the withdrawal of the policy, the Secretary of State published transitional provisions. Chapter 53 of UKBA’s Guidance currently provides:
“Transitional arrangements
“There are likely to be existing cases where DP5/96 will continue to apply despite its withdrawal. These types of cases are:
-current appeal cases where the policy has already been applied (before its withdrawal) and rejected by UKBA and the appeal is either still pending with the Asylum and Immigration Tribunal (AIT) or has been allowed;
-appeal cases where the policy was not applied by UKBA (before its withdrawal) and where the AIT directs UKBA to consider DP5/96 in the context of an allowed appeal
-cases where UKBA are challenging an allowed appeal by either the AIT or an upper Court;
-where UKBA have acknowledged in writing that they have received an application which relies on DP5/96;
-enforcement cases where UKBA have initiated the process of considering -DP5/96 prior to its withdrawal on 09 December 2008. **
** Examples of such circumstances are where a caseworker has already considered DP5/96 prior to its withdrawal and has written to the individual and the representative requesting further information / evidence in relation to the child’s length of residence.
Any information / evidence requested will need to be submitted within 28 days of the date of request, for the policy to continue to be applied to that case. The same factors contained within the withdrawn policy will still continue to apply when considering cases under DP5/96.
From the 09 December 2008 consideration under Article 8 of the ECHR and the Immigration Rules will also be given to any outstanding further representations against removal which cite the withdrawn policy (for example pursuant to paragraph 353 of the Immigration Rules) which have not yet been considered”.
PROCEEDINGS IN THE HIGH COURT
The recent Court of Appeal judgement arose as an appeal out of the High Court proceedings in the case of Abbassi [2010] EWHC 2894 (Admin) notified last year. In those proceedings the High Court considered whether the Secretary of State should have afforded the claimants the benefit of the withdrawn seven year concession policy (DP5/96). The cases of three claimants were considered.
Mr Rahman, a citizen of Bangladesh had three dependents, namely his wife, his son born on 22 July 1988 and his daughter, born on 28 September 1992, all of whom are Bangladeshi citizens. Mr Rahman and his dependents arrived in the UK on 17 September 2001 on a visitor's visa which expired on 16 February 2002. He made an application for an extension of his leave on 8 February 2002. It was refused on 11 March 2003. He and his family continued to reside in the United Kingdom. No further applications were made until 20 July 2009 when Mr Rahman applied for indefinite leave to remain under the terms of DP 5/96. Mr Rahman's application was refused on 9 December 2009 which decision was under challenge in the High Court proceedings.
Mrs Abbassi, a Pakistan citizen had four dependents, all of whom are Pakistani citizens, namely, her husband, her two daughters born on 9 February 1993 and 4 September 1984 respectively and her son, born on 24 October 1989. Mrs Abbassi and her dependents arrived in the United Kingdom on 4 September 2002 on a visitor's visa which expired on 4 March 2003 following which they continued to reside in the United Kingdom. Mrs Abbassi and her dependents had spent 6 years 3 months in the UK at the time of the withdrawal of DP 5/96. On 14 March 2009, Mrs Abbassi and her dependants made an application for leave to remain in the United Kingdom based on article 8 and on the children's ties with United Kingdom. The application was refused by the Secretary of State on 15 September 2009 which decision was under challenge in the High Court proceedings.
The third case which before the High Court was that of Mrs Adams who was a citizen of Ghana. Her dependents, all being citizens of Ghana, born in the United Kingdom, were her son, born on 15/5/2001, daughter, born on 27/5/2004 and son, born on 15/5/2008. Mrs Adams arrived in the United Kingdom in December 1999 on a visitor's visa permitting her to stay for up to 6 months. However, at the end of that time she continued to reside in the United Kingdom. In 2003 she married a citizen of Portugal and on 16 June 2003 was granted a residence permit for five years on the basis of her marriage. That residence permit was revoked by the Secretary of State on 29 July 2004. She appealed to the tribunal against the revocation but her appeal was dismissed on 4 May 2005. On 15 November 2008 she was arrested and served with IS151A. On 23 December 2009 she and her dependents applied for leave to remain in the United Kingdom, an application based on article 8 and the children's ties with United Kingdom. The application was rejected as invalid on 23 April 2009. She resubmitted the application on 2 May 2009 but it was refused on 31 October 2009 which decision was under challenge in the High Court proceedings. However on 5 October 2010 the Secretary of State accepted that the seven years children concession policy ought to have been considered in her decision dated 31 October 2009.
It was His Honour Judge Bidder QC’s judgment in the High Court that Mr. Rahman and his family, who completed their 7 years in the UK about 3 months prior to the withdrawal of the policy, would, had their claims been considered before the policy was withdrawn, have qualified for indefinite leave to remain. They had, in his judgment, something which might properly be described as akin to an accrued right, and not merely one not to be removed. Although they had not sought to regularise their position in the UK until after the withdrawal of the policy, in Judge Bidder QC’s judgment, they fell within a class of persons who were then entitled to the benefit of the policy and the presumption was that indefinite leave to remain would be granted to them unless it was considered by the Secretary of State under the policy that there were particular circumstances in which it was considered that enforcement action was still appropriate. HHJ Bidder QC took the view that there was no indication that Mr. Rahman or his family were aware that they had accrued a right under the policy but neither were the claimants in Rashid aware of their rights. The Court observed that the group to which Mr. Rahman and his family belonged had no warning of the Secretary of State's policy change and that it was simply not fair to that group not even to have given a month's warning that the concession was to end. The Court came to the conclusion in the Rahman case that not to afford them the benefit of DP 5/96 when they had accrued the necessary 7 years residence prior to the withdrawal of the policy was so conspicuously unfair as to amount to an abuse of power. The Court further was of the view that the position was even more clear in Mrs Adams and her family's case where enforcement process had in fact begun and that they were, under the clear terms of the policy, entitled to indefinite leave to remain unless consideration of their individual case revealed that leave should not be granted because of the factors set out in the policy statement. The Court however dismissed Mrs. Abbassi ‘s judicial review claim as her family had completed their 7 years about 9 months after the withdrawal of the policy. Mrs Abbassi and her family had lived in the UK for less than 7 years before the seven year child concession policy was withdrawn.
The Secretary of State’s decision in respect of Mr. Rahman and Ms Adams and their respective families were quashed and the High Court ordered that their applications for leave to remain be reconsidered by the Secretary of State under policy DP 5/96.
CONTINUING PROCEEDINGS IN THE COURT OF APPEAL
Secretary of State for the Home Department v Rahman, Abassi, and Munir [2011] EWCA Civ 814
The Secretary of State appealed against the order of HHJ Bidder QC quashing her decision to refuse Mr Rahman's application for leave to remain, and directing her to retake her decision applying policy DP 5/96. Mrs Abbassi applied for permission to appeal against the decision of HHJ Bidder QC to dismiss her substantive application for judicial review of the Secretary of State's decision not to grant her leave to remain.
A third applicant was introduced to the proceedings- Mr Munir appealed against the order of David Holgate QC, dismissing his application for permission to apply for judicial review of the Secretary of State's decision not to grant him leave to remain. Mr Munir and his family had lived in the UK for less than 7 years before the seven year child concession policy was withdrawn. Mr Munir had entered the UK on a visitor's visa with his wife and two daughters on 18 August 2002. The visa expired on 17 January 2003. Mr Munir's third child, a son, was born in this country in 2005. Mr Munir and his family had spent 6 years 4 months in the UK at the time of the withdrawal of policy DP 5/96. Mr Munir applied for leave to remain on 27 November 2009. His application was refused by the Home Office on 18 June 2010 and he issued judicial review proceedings.
In each of these cases the argument was maintained that the 7year concessionary policy must continue to be applied to the applicants who made their applications for leave to remain to the Secretary of State after the policy had been withdrawn
The Court of Appeal disagreed with the judgement in the lower Court. In the Court of Appeal’s judgment, the applicant’s submission that the withdrawal of DP 5/96 amounted to a change in the Immigration Rules was too much. The Court reasoned if the withdrawal of DP 5/96 was such a change, it necessarily followed that DP 5/96 itself should have been laid before Parliament, however it was not. On the basis of this argument, DP 5/96 was unlawful, and its withdrawal was lawful since it brought to an end the application of an unlawful policy.
The Court of Appeal also considered that the circumstances in which the courts will imply a duty to consult, where no expectation of consultation has been created by express or implied promise or practice, are narrow in the extreme. In the Court’s judgment, it would be wholly unreasonable to impose a duty on the Secretary of State to consult those whose presence in the UK is at best irregular, and at worst has been secured by deception, or those representing such persons. The Court of Appeal rejected the contention that the Secretary of State was bound to carry out any process of consultation before revoking the policy and there was similarly no basis for any duty on the part of the Secretary of State to give advance notice of the revocation of the policy.
The Court of Appeal was further of the view that the concept of legitimate expectation is normally otiose in cases where there has been no representation, by words or conduct, by the public authority in question to the claimant seeking to rely on it. The Court observed that none of the applicants knew of the seven year child concession policy before its withdrawal and as such they could not therefore show that they relied on it. In the Court’s Judgement the Secretary of State acted lawfully in withdrawing the policy and in determining the transitional provisions that she would apply. The Court of Appeal took the view that the policy was an invitation to parents whose immigration status was irregular not to seek to regularise their status, but to lie low until their children had been here for 7 years. The Court of Appeal considered that as two of the present cases showed, it could operate as an inducement to enter the UK fraudulently, with limited leave, and then to remain in the UK until the seven years have expired. The Court viewed that it would operate as an incentive to families not to seek to regularise their immigration status, and to seek to remain in the UK after their limited leave has expired. The Court considered that a minister is entitled to review, to change and to revoke his policy whenever he considers it to be in the public interest to do so and therefore rejected any suggestion that the Secretary of State's decision to withdraw the policy was irrational. The Court also took the view that neither did the Secretary of State fail to take into account the interests of the children of those seeking to remain in the UK as their interests, as well as those of their parents, are adequately addressed by the provisions of the European Convention on Human Rights, and in particular article 8. The Court saw no basis for impugning the transitional provisions as they require the policy to continue to be applied to those whose cases were considered when the policy was in force, so that they can contend that the proper application of that policy should have led the Secretary of State to decide not to remove them and/or to grant them leave to remain. The Court observed that there was a perfectly rational, sensible, distinction between such cases and cases, such as the applicants', in which the policy did not fall to be applied while it was in force. The Court was of the view that the suggestion that the transitional provisions are applicable to the applicants is inconsistent with the clear terms of those provisions as none of the applicants' cases came for decision before the Secretary of State while the policy was revoked.
The Court of Appeal did not consider it unfair to refuse to apply the policy to those, such as Mr Rahman, who had been in the United Kingdom for more than 7 years, but who had not sought to regularise their immigration status before the withdrawal of the policy. The Court took the view that Mr Rahman entered the UK under a leave he obtained by deception and this was sufficient to disentitle him, as he failed to seek to regularise his family's immigration status after the expiration of his leave. They were in the UK unlawfully and Mr Rahman’s evasion or avoidance of immigration rules disqualified him from establishing any legitimate expectation. The Court of Appeal considered that the lower Judge in the High Court failed to take account of the irregular immigration status of Mr Rahman and his family, including the misrepresentation that led to his being given leave to enter the UK, or the interests of the country in maintaining a rational and effective system of immigration control.
In relation to Article 8 of the ECHR, the Court took the view that the suggestion that anyone to whom the policy applied would necessarily have been entitled to remain in this country by virtue of Article 8 was to be rejected. The Court concluded that in appropriate circumstances, the enforcement of immigration restrictions may result in children who have been in this country for more than 7 years being required to leave.
The Court of Appeal therefore held that none of the three applicants were entitled to the benefit of the seven year concessionary policy.
IMPACT OF COURT OF APPEAL’S DECISION
The effect of the lower court’s decision in Mr Rahman’s case had been that DP 5/96 continued to apply to families with children who had been in the UK for 7 years or more when the policy was withdrawn (even if they had not submitted relevant applications prior to withdrawal of the policy), in addition to those cases referred to in the transitional arrangements. The Court of Appeal has however agreed with the Secretary of State that the continued application of DP 5/96 is relevant only to applications made or removals ordered before its withdrawal. The Court of Appeal has therefore refused to widen further the applicability of the former seven year concession beyond the circumstances caught by the transitional provisions.
When the outcome in the Rahman case was notified in the lower court last year it was much welcomed by potential applicants and practitioners. This was because those who had acquired the relevant 7years prior to withdrawal of the policy were not able to make relevant representations to UKBA as notice of its withdrawal had not been given. Similarly practitioners had lost the opportunity to warn for example very newly acquired clients or remind former relevant clients about the abrupt change in policy and as such the decision in the Rahman case in the High Court provided some hope of being able to rectify the position so as to submit relevant applications. It is therefore not hard to contemplate that several applications were submitted to UKBA in the past few months seeking to rely on the favourable outcome in the Rahman case. Where such applications were submitted substantially seeking to rely on the 7year policy, following the Court of Appeal’s reversal of the decision in Mr Rahman’s case, it may be necessary to consider reviewing those cases and making supplemental representations seeking to provide evidence and further submissions in relation to an effective Article 8 argument.
Although the Court of Appeal sought to control the circumstances in which the former policy continues to apply in line with what the Secretary of State intended, its judgement however still does have adverse effects. Thus it is possible to sympathise with those in positions similar to that of the Rahman family as although they had indeed acquired the relevant 7years they had not sought to rely on the policy as they did not know about it. However for those like the Abbassi family who had not acquired the relevant 7years at the time of withdrawal of the policy, unfortunatley it is not surprising that both the High Court and the Court of Appeal dismissed their claim for judicial review.
UKBA’s transitional provisions continue to apply in relevant cases. Taking into account Mrs Adams case which was joined to Mr Rahman and Mrs Abbassi’s cases in the High Court, it is noteworthy that she too submitted an application relying on the 7year policy after its withdrawal. What however distinguished Mrs Adam’s case from the other two cases was that the Secretary of State accepted during the course of proceedings that Ms. Adams had in fact been the subject of enforcement action prior to the withdrawal of that policy. Accordingly the Secretary of State accepted that under the transitional provisions relating to DP 5/96 Ms Adams was entitled to consideration of her case under the terms of the policy. However by contrast, with Mr Rahman and Mrs Abbasi and their families, the Secretary of State had not, prior to withdrawal of the policy, initiated enforcement proceedings against them or considered whether enforcement action should proceed. No relevant representations had been before the Secretary of State at the time the policy was revoked. The transitional provisions therefore did not apply to their cases.
Although the Court of Appeal concludes its judgement by warning that it is not a foregone conclusion that anyone to whom the policy applied would necessarily have been entitled to remain by virtue of Article 8, reliance on an Article 8 claim for those who missed out on benefiting from the policy remains a realistic option in a carefully prepared Article 8 application. During proceedings in the Court of Appeal, the Secretary of State reconsidered the individual circumstances in Rahman, Abbassi and Munir. The Secretary of State took into account the circumstances of the cases as well as the passage of time which had accrued since the original decisions were taken including the impact of removal upon the particular children concerned and the UK's obligations under Article 8 of the ECHR, and the Secretary of State decided that removal would not be enforced and that each family would be granted discretionary leave to remain for a period of three years.
To the claimants however the advantage of seeking to obtain the benefit of the policy was to be granted indefinite leave to remain. Considerations under Article 8 of the ECHR where successful would lead to the grant of limited leave to remain at a time until satisfaction of holding a total of 6years discretionary leave to remain before being entitled to apply for settlement. In the Rahman case however where they have been granted continuing discretionary leave to remain, absent any adverse factors, they could apply for settlement relying on the immigration rules as soon as September 2015 relying on the 14year long residence rules( if those rules remain in force till then).
CONCLUSION
It would appear that the Court of Appeal did no more than reconfirm the Secretary of State’s position along with the existing transition provision following the withdrawal of the policy. The door to the fresh resurrection of the 7year policy by other means as per the Rahman/Abbassi litigation, outwith UKBA’s transitional provisions, appears to have been firmly shut. However the transitional provisions themselves do not appear to be an exhaustive list in relation to cases which may still be caught by the seven year policy. Where a seeming relevant case seeking to rely on the seven year child policy does not fall within the published transitional provisions, the key to succeeding in such a claim may be to strive to establish that an individual applicant’s case was before the Secretary of State in whatever manner prior to the withdrawal of the policy so as to argue that the applicability of the policy to a relevant case remains outstanding.
About the Author
Alice Muzira, Solicitor, Advanced Level 3
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