COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
CO/2900/2005 & CO/3623/2006
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
SIR PETER GIBSON
|THE QUEEN ON THE APPLICATION OF MIFAIL RUDI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|THE QUEEN ON THE APPLICATION OF TI (KOSOVO)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mark Henderson (instructed by Messrs Howe & Co) for the Appellant
Samantha Broadfoot (instructed by Treasury Solicitors) for the Respondent
Manjit Gill QC & Jonathan Adler (instructed by Messrs Palis) for the Appellant
Steven Kovats (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Thursday 6th December, 2007
Crown Copyright ©
LORD JUSTICE CARNWATH :
The facts - MR
The facts - TI
The issues in the appeals
Scope of the Concession
i) "The near-miss point"
When assessing proportionality under Article 8, the decision-maker wrongly failed to take into account the extent to which the claimant fell within "the spirit or rationale" of the Concession, even if not "within its precise letter".
ii) "The past denial of benefits point"
The decision-maker wrongly failed to take into account the substantive and procedural benefits which the claimant would have enjoyed if he had been granted "his rightful period of exceptional leave to remain" prior to his 18th birthday on 5th March 2003.
iii) "The misdirection issue"
The decision-maker applied the wrong test in deciding whether to allow the fresh claim.
Scope of the concession
The Concession as extended
"…the practical and economic reasons for the policy did not apply to asylum-seeking individuals who were on their own to the same extent as they applied to members of asylum-seeking families. Unaccompanied minors, like other individuals, could not have made sequential asylum applications (resulting in extra costs and administrative problems) in the same way as members of an asylum-seeking family. For similar reasons, the removal of an unaccompanied minor once he or she is 18, like any other individual, self-evidently does not engage many of the practical and procedural difficulties (with the consequential cost implications) which could arise in relation to family units." (para 33)
"… while the policy can undoubtedly operate as something of a blunt instrument, it appears to me inevitable that any policy of this type will produce anomalies. Unless the policy had given every asylum-seeker in this country in October 2000 the right to remain, it was necessary to limit its scope. Limiting its scope to families is, at least on the face of it, understandable for the reasons already discussed. Decisions, in such a context, as to cut-off dates, what precisely constitutes a family unit, and as at what date someone has to show he is a member of the unit, are not, of course, wholly immune from judicial scrutiny. However, because personal circumstances are almost infinitely various, it would have been impossible to identify qualifications which produced no perceived anomalies. Particularly if the qualifications were to be (as they are) few and simple, which is plainly a desirable feature.
"… the policy was not predicated on the view that, by definition, each individual falling within [its] terms would have a stronger … case for the grant of leave to remain than any individual falling outside [its] terms…" (paras 35-6)
"I confess to having some sympathy for the appellant. But for an accident of history and his misfortune to become separated from his family as they fled from Kosovo, he can justifiably say that he would have arrived here as a member of a family, may well have at that time be able to claim asylum as part of the family and so would have fallen within the concession. As it is he, like those fortunate enough to arrive with their parents, has attended school here, made his attachments here and lived a good industrious life here. To send him back to Kosovo is tough. That, however, is a social judgment, not a legal one. I agree with Neuberger L.J's legal analysis. To compare an unaccompanied minor with a family is not, I fear, to compare like with like. Even if it is, the difference in treatment can be objectively justified by the Secretary of State." (para 52)
The argument in this case
"… no justification had been offered for the decision to discriminate on grounds of parentage when it was decided to grant settlement to young adults in 2004… Contrary to the SSHD's claim that he had established 'clear objective differences' depending on the presence or absence of parents, … nothing in the SSHD's reasoning or evidence justifies the stark difference of treatment between A and someone of the same age who arrived at the same time but had not lost his parents."
"…the fact that an individual might have left the family home did not exclude that dependant, provided that the family remained living in the UK."
Thus a young adult living independently, in precisely the same circumstances as TI or MR, could be entitled to ILR simply because he had a parent in some part of the UK, even if their lives had become wholly separate.
The fresh claim
The near-miss point
i) Shkembi v Home Secretary  EWCA Civ 1592 was a case about fairness, not substance. It was held that the tribunal had acted unfairly in refusing an adjournment to enable evidence to be obtained of a statement by the then Home Secretary, Mr Blunkett, as to the purpose and effect of the Concession. The Court expressly declined to encourage any expectation that the evidence would assist the claimant's case. The most that can be said is that the court was prepared to assume that the statement might be relevant even though the claimant did not fall within the strict words of the Concession. It is not a decision to that effect, and Mongoto does not appear to have been cited.
ii) In SB (Bangladesh) v Home Secretary  EWCA Civ 28, this court observed that the tribunal had been right to regard the fact that the claimant "only just failed to qualify for admission" as a factor in her favour. It approved a statement by Collins J in Lekstaka v Home Secretary  EWHC 745(Admin) (para 38) that:
"… one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter."
It is important to note that the court's observation was not essential to its decision, and Mongoto was not referred to, let alone questioned. Collins J's statement, on which the court relied, seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them.
"… I accept that there may be cases in which the rationale for a policy may inform the judge of the significance of a particular point; there may be lacunae, but that is very different from treating a policy as the basis for extension by analogy or comparison… There is not a near-miss penumbra around every policy providing scope for its extension in practice to that which it did not cover…" (para 79)
Denial of benefits
Sir Peter Gibson :
Lord Justice Wall :