COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE WYN WILLIAMS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| R (on the application of ) KERRY ANN VERONICA DALEY-MURDOCK
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 25th & 26th January 2011
Crown Copyright ©
Lord Justice Sullivan :
The judgment of Wyn Williams J
i) The two decision letters were "immigration decisions "for the purposes of section 82(2) of the 2002 Act.
ii) It was unreasonable or unfair for the Respondent not to make an appealable removal decision at the same time as the first and/or the second decision letter.
iii) The Respondent had not been entitled to conclude that the Appellant and her family should not benefit from policy DP 5/96.
Failure to issue a removal decision
"2.20. There should also be recognition that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them."
Policy DP 5/96
"25. During the hearing, the focus of the oral submissions upon policy DP 5/96 was upon whether the Defendant had been entitled to conclude not just that the Claimant and her husband had been working illegally (about which there was no dispute) but that they had probably engaged in deception in order to obtain such employment.
26. Having considered this matter with some care I am satisfied that the Defendant was entitled to conclude that the Claimant and her husband must have engaged in deception at least to some extent. It is clear from the documentation presented to the court that both the Claimant and her husband obtained a national insurance number. There was evidence before the Defendant which demonstrated, clearly, that the Claimant's husband obtained his national insurance number before the expiry of his leave to remain on 30 July 2002. Yet it was a condition of his leave to remain until that date that he did not engage in work. Although there is no evidence about when the Claimant obtained her national insurance number there is no dispute that she did. Neither the Claimant nor her husband was entitled to obtain a national insurance number, as it seems to me, since there has been no time since they arrived in this country when they were entitled, lawfully, to work. Yet by applying for a national insurance number they were at the very least impliedly representing that they were entitled to work. In short, it seems to me that they must have obtained a national insurance number by deception. Further, in each job application made by the Claimant and her husband there was probably an implied assertion of an entitlement to work. To that extent, the Claimant and her husband used deception to obtain employment.
27. I am satisfied that the justified finding of deception on the part of the Claimant and her husband when taken in conjunction with the other features relied upon by the Defendant made it permissible for the Defendant to conclude that exceptional circumstances existed which justified a conclusion that the Claimant an her family should not benefit from policy DP 5/96. I stress that my decision relates to the lawfulness of that decision. I should not be taken to be determining whether or not the Defendant's decision would be upheld on a merits based appeal."
Lord Justice Rimer:
Lord Justice Sedley: