Leave to remain - Appeal

Rahman v Secretary of State for the Home Department: Court of Appeal, Civil Division: 15 July 2011

The two appeals concerned the withdrawal by the Secretary of State of Deportation Policy 5/96 (DP 5/96, the ‘seven year child concession policy’, pursuant to which families who did not have leave to be in the United Kingdom, but with children who had been in the UK for seven years were permitted to remain, save in exception circumstances. In each case, it was claimed that the policy should continue to apply, where each claimant had made their application for leave to remain to the secretary of state after the policy had been withdrawn.

The secretary of state appealed against the judge’s decision to quash her decision to refuse the first claimant’s application for leave to remain, and directing her to retake her decision by applying policy DP 5/96. [The proceedings did not concern the second claimant, as she was refused permission to appeal]. The third claimant appealed against the judge’s decision to dismiss his application for permission to apply for judicial review of the secretary of state’s decision not to grant him leave to remain. The first claimant had lived in the UK for more than seven years before DP 5/96 had been withdrawn. The third claimants had not.

The claimants submitted that with withdrawal of the DP 5/96 had been unlawful for being incompatible with the underlying statutory scheme. The withdrawal had been a statement of the practice to be applied by the Home Office, and accordingly was required to be subject to the parliamentary procedure in s 3(2) of the Immigration Act 1971 (the 1971 Act). Additionally, they submitted that it was unlawful as it had been made without prior notice or consultation, and that it had been irrational and perverse.

Further, they submitted that it was incompatible with art 8 of the European Convention on Human Rights to deny leave to a family who would have qualified under the withdrawn policy. The secretary of state argued that none of the claimants had any legitimate expectation that DP 5/96 would apply to their case. In addition, in relation to the first claimant, she argued the judge had failed to take properly into account the right of the secretary of state to decide whether a policy was or was not in the public interest.

The secretary of state's appeal would be allowed. The third claimant's appeal would be dismissed.

(1) DP 5/96 had not itself been laid before parliament. If the withdrawal of DP 5/95 required to be subject to s 3(2) of the 1971 Act, it followed that DP 5/96 should itself have been laid before parliament. On that basis, DP 5/96 would be unlawful, and its withdrawal was lawful as it brought to an end the application of an unlawful policy. Accordingly, it was unnecessary to decide whether the policy should have been laid before parliament pursuant to s 3(2) of the 1971 Act, as the claimants could not benefit from it either way (see [38]-[39] of the judgment).

(2) Applying settled principles, the secretary of state had not been under a duty to carry out any consultation before revoking DP 5/96, nor to give advance notice of its intention to revoke the policy (see [40]-[41] of the judgment).

R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Department [2007] All ER (D) 172 (Nov) applied.

(3) The concept of legitimate expectation was normally otiose in cases where there had been no representation, by words or conduct, by the public authority in question to the claimant seeking to rely on it. None of the claimants had known of the seven year child concession policy before its withdrawal.

Accordingly, they could not show that they had relied on it. The secretary of state had been entitled to take the view that the policy had been inimical to her immigration policy. The policy had been 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 in the UK for seven years. It could operate as an inducement to enter the country fraudulently, with limited leave, and remain in the UK until the seven years had expired. Accordingly, it was not irrational for the secretary of state to withdraw the policy. Neither had the secretary of state failed to take into account the interest of the parents or children, which were adequately protected by art 8 of the Convention (see [42], [43] of the judgment).

It followed that the secretary of state’s appeal in relation to the first claimant would be allowed, and the third claimant’s appeal would be dismissed (see [48] of the judgment).

Zane Malik (instructed by Malik Law Chambers) for the claimants. John-Paule Waite (instructed by the Treasury Solicitor) for the secretary of state.