Case No: C4/2010/2624  
Neutral Citation Number: [2011] EWCA Civ 1081
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT 
QUEEN'S BENCH DIVISION 
ADMINISTRATIVE COURT
MR JUSTICE OUSELEY

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/09/2011
Before :

LORD JUSTICE PILL
LORD JUSTICE ETHERTON
and
SIR MARK POTTER
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Between :

	AJ 	Appellant	
	- and -		
	Secretary of State for the Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Zane Malik (instructed by Malik Law Solicitors) for the Appellant
Ms Susan Chan (instructed by the Treasury Solicitor) for the Respondent

Hearing dates : 27 July 2011
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Judgment

LORD JUSTICE PILL : 
1.	This is an appeal against the decision of Ouseley J refusing the application of AJ (“the appellant”) to quash a decision of the Secretary of State for the Home Department (“the Secretary of State”) on 9 March 2010 refusing him leave to remain in the United Kingdom on the basis of article 8 of the European Convention on Human Rights.  There was no right of appeal to the Tribunal against the refusal of leave to remain.  The case went to the Administrative Court as an application for judicial review based on a breach of article 8.  Ouseley J refused the application on 18 October 2010.  
2.	AJ is a Nigerian national who first entered the United Kingdom in 1988 as a visitor and later obtained a 12 month student visa, which expired in 1990.  He formed a relationship with a British citizen JO and they have three children, born in 1990, 1991 and 1994, all of whom are British citizens. The relevant child in the present case is Godwin, aged 16 at the time of the Secretary of State’s decision.  
3.	Having been convicted of shoplifting, AJ was deported to Nigeria.  He returned illegally in 1997 and has remained here, living with JO, ever since.  AJ and family were granted discretionary leave to remain on 5 July 2011 and, in the submission of the Secretary of State, the appeal has become academic and should not be determined. 
4.	On 1 February 2011, the Supreme Court gave its decision in ZH (Tanzania) v Secretary of State [2011] UKSC 4.  Permission to appeal was granted to AJ on 17 June 2011.  Sullivan LJ stated: 
“It seems to me, however, that it is desirable that the issues raised in this case as to the applicability of section 55 of the Borders, Citizens, and Immigration Act 2009 (“the 2009 Act”) and the Supreme Court’s decision in ZH Tanzania . . . . to non-appealable decisions by the Secretary of State which are then considered in judicial review proceedings in the Administrative Court should be considered together with the same issues as are raised in respect of appealable decisions and have gone on appeal to the Upper Tribunal in the cases of SP (India) and EJ (Nigeria).”
Sullivan LJ added:
“It does seem to me desirable that the impact of section 55 of ZH should be considered across the board.”
5.	Section 55 of the 2009 Act provides:
“(1)	The Secretary of State must make arrangements for ensuring that—
(a)	the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)	any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2)	The functions referred to in subsection (1) are—
(a)	any function of the Secretary of State in relation to immigration, asylum or nationality;
(b)	any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c)	any general customs function of the Secretary of State;
(d)	any customs function conferred on a designated customs official.
(3)	A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).”
Statutory guidance has been given under section 55(3).
6.	In ZH, Baroness Hale, with whom the other members of the court agreed, stated, at paragraph 24:
“Both the Secretary of State and the tribunal will therefore have to address this [section 55] in their decisions.”
7.	This case came before the court, with the cases of SP (India) and EJ (Nigeria), mentioned by Sullivan LJ, on 27 July 2011.  It was submitted on behalf of the Secretary of State that there was no good reason to hear the appeal because discretionary leave to remain had been granted to AJ and his family.  Mr Malik, on behalf of the appellant, submitted that Sullivan LJ had granted leave to consider the applicability of section 55 of the 2009 Act, and the decision in ZH, and the legal issue which had arisen should be determined.  
8.	In a judgment with which Etherton LJ and Sir Mark Potter agreed, I stated:
“9. The position in AJ, where relief has been sought by way of judicial review, is different.  AJ is an overstayer.  On 3 January 2009 he applied for leave to remain in the United Kingdom on the basis of Article 8.  The application was refused on 3 July 2009.  That was a non-appealable decision because it did not include a decision to remove AJ and was not therefore an immigration decision for the purposes of section 82 of the Nationality Immigration and Asylum Act 2002.  AJ's challenge to the decision is by way of judicial review, and the question arises whether the same approach to section 55 of the 2009 Act is appropriate in the context of non-appealable decisions when the challenge is by way of judicial review.  A legal point, which may be of some general significance, thereby arises.
10. The court was not prepared to consider the issue at the hearing, for which one day had been allotted, for lack of time and also because the point had not been addressed in the otherwise detailed written submissions on behalf of the Secretary of State.
11. Accepting that resolution of the point is reasonably required, the court, on being presented with an agreed question and an agreed statement of facts, decided, with the consent of the parties, to consider the point on the basis of written submissions to be submitted within 14 days.” [The period of 14 days was subsequently extended.]
9.	Before Ouseley J, it was argued on behalf of the Secretary of State that it was premature to consider a Convention claim before consideration had been given to removing AJ as an overstayer.  That submission was not withdrawn, and the point was not conceded, either before or at the hearing on 27 July when the issue was ventilated.  The only submission on behalf of the Secretary of State was that the appeal should not be determined.  
10.	That there might be room for argument on the point may have appeared from the decision of this court in Daley-Murdock v Secretary of State [2011] EWCA Civ 161 where the court found it “unnecessary to consider” a question about “the practical difference between an appeal on the merits and judicial review when breach of the ECHR is in issue”.  In that case, however, unlike the present case, the Administrative Court had allowed the claim based on article 8.  
11.	It is not relevant to the point now at issue but it was established in Daley-Murdock, following the decision in Secretary of State v Nasseri [2009] UKHL 23, that the task of the Administrative Court, when breach of a Convention right is alleged, is to decide not merely whether there had been a defective decision making process, but whether the applicant’s Convention rights had been violated (paragraph 13).  If necessary, Mr Malik would have challenged the test applied by Ouseley J, whose decision pre-dated Daley-Murdock, on this issue.       
12.	Mr Malik submitted that in present circumstances there is no material difference between an appeal on the merits and an application for judicial review.  Breach of article 8 is alleged and the underlying argument in both situations is about the best interests of the child and the section 55 obligation.  The decision of the Secretary of State should have been quashed.  Section 55 should be taken into account in non-appealable decisions as well as in appealable decisions.  Express consideration must be given to the section.  
13.	Developing those submissions in the further written submissions, Mr Malik submits that the Secretary of State must always have regard to section 55 when taking a decision which she knows will affect a child.  Section 55(2)(a) of the 2009 Act identifies “the functions” for the purposes of section 55(1) as “any function of the Secretary of State in relation to immigration, asylum or nationality”.  A decision to refuse leave to remain comes within that definition, which is not limited to the function of making appealable removal decisions.  A decision to refuse leave to remain is as likely to affect a child as a decision to remove.  The decision of the Secretary of State should be quashed by reason of the failure to take section 55 of the 2009 Act into consideration.  
14.	Mr Malik proceeds to make submissions as to the merits of the case, in the light of section 55 and article 8.  He submits that, as in R (Kotecha and Das) v Secretary of State [2011] EWHC 2070 Admin (Burnett J), the court should itself rule that, taking into account section 55, the appellant’s Convention rights have been violated.  
15.	In her written submissions on behalf of the Secretary of State, Ms Chan concedes that the duty under section 55 of the 2009 Act applies to all immigration, asylum and nationality functions and is not applicable only when the Secretary of State is making an appealable decision to remove.  It applies when making a non-appealable decision refusing leave to remain.   
16.	That was the point contested below and not conceded on 27 July, which, because of its general importance, persuaded the court to permit the appeal to proceed. On an application to quash a non-appealable decision by judicial review, the court should take into account whether the Secretary of State has had regard to her duty under section 55 of the 2009 Act, and the statutory guidance issued under it, when making her decision. 
17.	Ms Chan proceeds to make detailed submissions, supported by a statement from a Home Office official and many pages of statistics, as to circumstances in which it may be permissible for the Secretary of State to make a decision affecting a child without considering section 55.  Without challenging the correctness of the decision in Kotecha, Ms Chan also submits that it will be more appropriate in most judicial review cases for the Administrative Court to quash the Secretary of State’s decision and remit the case to the Secretary of State for reconsideration rather than to make its own decision on what section 55 requires.    
18.	On the facts of the present case, Ms Chan concedes that the second of the Secretary of State’s decisions in relation to the appellant “did not visibly consider what was in the best interests of Godwin although she had been made aware by submissions and evidence dated 3 January 2009 that Godwin would be affected by the decision to refuse leave to AJ.”  It is rightly accepted by Ms Chan that it was not permissible for the Secretary of State to fail to have regard to section 55 in the decision letter dated 9 March 2010.  It was because of that failure that discretionary leave to remain was granted on 5 July 2011.  
19.	The legal point which concerned the court now having been conceded, it would not in my judgment be appropriate for the court to consider in what circumstances, if any, the Secretary of State need not take account of section 55 or in what circumstances, on judicial review, the court should make its own decision rather than remit.  We have not had the advantage of oral submissions.  It is sufficient to allow the appeal and to quash the Secretary of State’s decision of 9 March 2010.  If a future attempt is made to remove AJ and family, the circumstances will inevitably be different from the present.  
LORD JUSTICE ETHERTON :
20.	I agree.  
SIR MARK POTTER :
21.	I also agree.