Leave to remain - Appeal - Claimants coming to United Kingdom in 2000

R (on the application of Mine) and others v Secretary of State for the Home Department (Mr Justice Simon): Queen's Bench Division, Administrative Court: 9 September 2011

The claimants were a family consisting of father, mother and two children, the younger of which, K, was 18 years old. They had come to the United Kingdom from Guyana in June 2000 and had remained in the UK from that time without leave. Subject to certain criteria, revised Deportation Policy DP5/96 provided that removal from the United Kingdom would not normally be appropriate where there were minor dependent children and families living in the UK for seven or more years.

In effect, that provided an express presumption against removal and in favour of indefinite leave to remain. In December 2008, the immigration minister announced that DP5/96 would be immediately withdrawn. Transitional arrangements were put into place to assist the removal of DP5/96. They stated, inter alia, that DP5/96 would continue to apply to cases where the UK Borders Agency (UKBA) had acknowledged in writing that it had received an application relying on DP5/96 (the exception).

In November 2008, the claimants applied for indefinite leave to remain in the UK. On 9 December 2008, the same day that DP5/96 was withdrawn, the claimants' applications were returned by the Home Office on the basis that the required fee had not been paid. It appeared that the failure to include the fee had been the result of error on the part of administrative staff in the office of the claimants' solicitors.

On 14 January 2009, two further applications were submitted with the appropriate fees, and in August 2009 the defendant refused the January applications.

The claimants contended that: (i) the defendant ought to have applied the revised DP5/96 to their case; and (ii) the decisions were unlawful, as being incompatible with article 8 of the European Convention on Human Rights and hence in breach of section 6 of the Human Rights Act 1998. The application would be refused.

(1) On the facts, the claimants' application ought not to have been treated as subject to the transitional arrangements. The exception covered cases where an effective application had been made and where the UK Border Agency had acknowledged the receipt of the valid application. It did not cover an invalid application, since the UKBA would not and did not acknowledge an application relying on DP5/96 where the payment requirements had not been satisfied. Although the omission of the fee had led to a harsh result for the claimants, it was not the case that there was a category of cases in which the defendant had a discretion to deal with cases deserving of sympathy 'as if' DP5/96 had applied to them.

Nor was it the case that the claimants had fallen into an uncertain category to which the Transitional Arrangements might apply if the defendant had a discretion. Further, had there been a discretion, it was far from clear that it ought to have been exercised in the claimants' favour, notwithstanding that an application had been made during the period of the existence of DP/596 (see [28], [29], [34] of the judgment). The application under DP5/96 would fail (see [35] of the judgment).

AF (Jamaica) v Secretary of State for the Home Department [2009] All ER (D) 261 (Mar) applied.

(2) The decision letter had considered whether the family could be reasonably expected to adjust to life in Guyana, and had stated that consideration had been given to the factors of age, length of residence in the UK, personal history and strength of connections with the UK. Although the contents of the decision letter could be criticised for being insufficiently specific, it had tried to address points expressed generally rather than with specific reference to K.

The claimant's case was unspecific, and the arguments it rested on were very broad concepts and open to the answer that what was intended was that K would leave with his parents and elder brother once his secondary education was complete and return to Guyana. The matters related to K's best interest, and did not militate in favour of granting leave to remain (see [46]-[50] of the judgment).

There had not been an interference with a relevant right to respect for private life other than in accordance with the law (see [50] of the judgment). Uner v Netherlands (Application No 46410/99) [2006] 3 FCR 340 applied; ZH (Tanzania) v Secretary of State for the Home Department [2011] All ER (D) 02 (Feb) applied.

Greg O Ceallaigh (instructed by Rahman & Co ) for the claimant. Dennis Edwards (instructed by Treasury solicitors) for the defendant.