COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SIJ WARR AND IJ BROWN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE LONGMORE
| NF (GHANA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Jeremy Hyam (instructed by The Treasury Solicitors) for the Respondent
Hearing dates : Friday 29th February 2008
Tuesday 15th April 2008
Wednesday 23rd July 2008
Crown Copyright ©
Lord Justice Rix:
"In the light of your policy on children, we request that you reconsider the whole case on the bases of our client's marriage, long residence and the 7 year policy on children so that if you refuse the application then all matters can be dealt with by the Court at the same time."
"The appellant's British-born daughter was under 6 years of age when the decision under appeal was taken in December [sic, sc September] 2004, but she was over 7 when the appeal came before Miss Beg in June 2006. The possible eligibility of the appellant to take advantage of the 'seven-year concession' for the families of children who have lived here at least seven years was something which the immigration judge ought to have considered, even though the policy was not applicable at the date of the decision. This follows from the principle enunciated in LS* Gambia  UKIAT 85. Although an immigration judge may not be able to allow an appeal outright under a policy (on the principle in Abdi  Imm AR 148), the potential applicability of the policy is a factor to be taken into account when performing the Article 8 balancing exercise: see Tozlukaya  EWCA Civ 379.
On the other hand any countervailing factors which are expressed in the policy document as militating against the application of the policy are also to be taken into account, since if they are present in the appellant's case they may reduce or nullify the weight to be given to the policy in the assessment of whether removal would be lawful. For example, in Baig  EWCA Civ 1246, Lord Justice Buxton held that the 'seven-year concession' was not to be applied at all in a case where the appellant and her husband had an appalling history of deceiving the authorities and absconding.
The present case is transferred for a full reconsideration of the proportionality of removal, taking account of the policy for which the appellant is potentially eligible, and of any countervailing factors which may arise on the facts of the case."
The DP 5/96 policy
"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE
The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence.
Whilst it is important that each case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception.
3. When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits."
That amended document still bears the date of the original policy's issue, March
"For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under the age of 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."
That statement appears among "Written Answers" in Hansard for 24 February 1999 at columns 309/310. It is accurately quoted by Richards LJ at para 83 of his judgment in Tozlukaya.
"IMMIGRANT FAMILIES WHO HAVE LIVED IN THE UK FOR 7 YEARS WILL BE ALLOWED TO STAY
The Home Office has changed the time limit under which immigrant families with young children can be forcibly removed from the country.
Home Office Immigration Minister, Mike O'Brien, said:
"A child who has spent a substantial, formative part of life in the UK should not be uprooted without strong reason and that is why we are changing the time limit from ten to seven years for families with young children who have been unable to establish a claim to remain.
We are committed to delivering a system of immigration control which is firm but also fair. Those who are not entitled to be here should be removed.
However for those who have been in this country for a long time we need to recognise that they will have become established in their community."
The change was announced in response to a written Parliamentary Question from Ms Linda Perham, MP for Ilford North on 24 February 1999."
"Deportation in Cases where there are children with long residence: Policy Modification announced by the Under-Secretary for the Home Department Mr O'Brien on 24 February 1999.
Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom.
For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence.
However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:
- the length of the parents residence without leave: whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
- the age of the children
- whether the children were conceived at a time when either of the parents had leave to remain
- whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
- whether either of the parents' has a history of criminal behaviour or deception.
It is important that full reasons are given making clear that each case is considered on its individual merits."
" In Baig v Secretary of State for the Home Department  EWCA Civ 1246 (unreported) there was an issue as to the effect of that statement. Counsel for the applicant contended that it introduced a significant shift in the policy, in that it made it clear, which the original document did not, that the assumption was that children falling within the stated period of years should not be removed from this country, and that an exceptional case would need to be demonstrated before they were removed. After some discussion counsel for the Secretary of State accepted, albeit for the purpose of the particular case, that a fair reading of the original document and the parliamentary answer was to be found in a passage in Butterworths' Immigration Law Service, at para 1121, which reads…."
"85…At the court's request, the Secretary of State's stance was confirmed in a letter from counsel following the hearing. Counsel stated on instructions that the Secretary of State's policy is set out in the original document DP 5/96 as amended by the substitution of '7' for '10', and that the ministerial statement by Mr O'Brien is not part of the policy. The Secretary of State does not accept that the summary in Butterworths' Immigration Law Service is an accurate reflection of the policy…
87. The court also sought confirmation of the terms of the policy actually applied by the decision-maker. In a further letter sent after the hearing, counsel for the Secretary of State stated on instructions that the policy considered and applied by the official who took that decision on behalf of the Secretary of State was the policy set out in the document DP 5/96 as amended by the substitution of '7' for '10', and that caseworkers do not have access to Mr O'Brien's statement or to the summary set out in Butterworths' Immigration Law Service."
"88. All this places the Secretary of State in a most uncomfortable position. In 1999 the Under-Secretary of State made in Parliament what was clearly intended to be a statement of policy. The way in which the statement described the existing practice and the change to 7 years instead of 10 years strongly suggested a presumption against enforcement action in such cases ('save in very exceptional circumstances', 'will not normally be appropriate'). Yet it is now said that none of this forms any part of the policy and that the actual policy is limited to one under which each case is considered on its merits but a number of factors may be of particular relevance (something which is barely more than a statement of considerations relevant in any discretionary decision of this kind). Moreover this position is now adopted despite the absence of any action over the intervening years to correct the false impression created by the text of Butterworths' Immigration Law Service on which practitioners will have relied, and despite the concession made by counsel for the Secretary of State in Baig…
89. All this is contrary to the principles of good administration. It also has potential legal consequences. From the information we have been given it is apparent that any decisions concerning children with long residence are taken without any regard to the parliamentary statement on the subject by the Under-Secretary of State. There is a strong argument not only that the parliamentary statement is a relevant consideration, but that there is a legitimate expectation that it will be applied."
"The correct approach when considering whether DP 5/96 should apply is to start from the presumption that, in the absence of any countervailing considerations, where the qualifying residence requirements are met it would be appropriate to enforce removal, but then to proceed to consider whether in all of the circumstances of the case removal remains the appropriate course of action."
"We would, however, suggest, suggest, in line with what this court said in Tozlukaya, that the Secretary of State may well be bound by Mr O'Brien's formal parliamentary answer, and that none of the other material discussed in this judgment detracts from that. Indeed, on the material before us at present, we would be disposed to hold that DP 69/99 is to be found (a) in the document set out in para 25 above [ie in the policy modification statement now set out in para 29], and (b) to the extent that Mr O'Brien's parliamentary statement goes beyond that, in that statement, set out in para 26 above, by which the Secretary of State is also bound."
The Secretary of State now accepts that (save for the reference to "DP 69/99" as such) that provisional conclusion is correct, and that she is bound not only by the original DP 5/96, as amended to refer to 7 years, but also by the policy modification statement (see para 29 above) and, for the reasons set out in Tozlukaya, also by Mr O'Brien's parliamentary answer (see para 26 above).
(1) start from the position (the presumption) that it is only in exceptional cases that indefinite leave to remain will not be given, but
(2) go on to consider the extent to which any of or a balancing of all the factors mentioned in the 1999 policy modification statement makes the case an exceptional one.
It is only in such a way that the various documents can be reconciled into a single policy.
The AIT decision
"The policy under consideration in that case was set out at paragraphs 29 to 30 of the judgment of Moses J. However that is not the complete policy which we were given by Miss Lonsdale (Home Office Presenting Officer and which Counsel [for NF, then Mr Pipi] accepted represented the policy under consideration. We have set it out in full above…We do have the advantage which the Tribunal [in MD  UKIAT 00208] and Moses J did not have of a full agreed statement of the policy."