England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th October 2002

 


Mrs Justice Rafferty :

1. Consequent upon a refusal by Silber J on 31^st July 2002 this is a renewed application for permission to apply for judicial review. The challenge is to the decision dated 15^th June 2002 by the Secretary of State for the Home Department in which he refused the application of the Claimants and of Alexander Dabrowski for leave to remain in the UK on the basis of his long residence policy (DP 069/99); to his refusal of their application for leave to remain on the basis of family life; and as to the setting of removal directions for the return of the Claimants to Poland.
2. On the 29^th November 1965 the third Claimant was born in Poland. In 1984 she married her husband who is the father of the other two Claimants the first of whom was born on the 7^th May 1990, the second on the 29^th June 1993, each in Poland. After physical attacks and threatened rapes the Claimants on the 13^th January 1995 left Poland and arrived in the United Kingdom claiming asylum. That claim was rejected and Alexander Dabrowski the third Claimant's husband was returned to Poland. In September 1999 all the Claimants returned voluntarily to Poland to be with him. Upon their return the harassment and discrimination previously suffered continued. By December 1999 the second Claimant had been attacked and Alexander left the rest of his family. By 13^th December 1999 the Claimants had returned to the United Kingdom, the third Claimant claiming asylum citing the other two as her dependants.
3. On the 22^nd January 2000 the Defendant rejected the asylum application and on the 16^th March 2000 the Claimants appealed. By the 14^th December 2000 that appeal had been heard and dismissed on the basis of sufficiency of protection in Poland. Leave to appeal was refused by the IAT. On the 17^th April 2001 solicitors previously representing the Claimant made a Human Rights application to the UK Immigration Service at Heathrow Airport. On the 15^th October 2001 by letter the Defendant refused it. On the 31^st October 2001 notice was given of a Section 65 appeal. On the 27^th February 2002 the Human Rights Appeal was heard by the Adjudicator who in a promulgation of the 12^th March 2002 dismissed it. On the 25^th March 2002 the Claimant sought leave to appeal against his decision, on the 4^th June 2002 removal directions were set, that same day an application was submitted for leave to remain, and it was rejected on the 15^th June. On the 16^th June solicitors for the Claimant asked the Defendant for reasons, and on the 17^th notified their intention to issue judicial review proceedings. Temporary admission was granted until the 25^th June 2002.
4. Policy modification was announced by the Under Secretary of State of the Home Department, Mr Mike O’Brien, on the 24^th February 1999. It reads where relevant as follows:-

35. Deportation in cases where there are children with long residence: policy modification announced by Under Secretary of State for the Home Department Mr O’Brien on the 24^th February 1999 references [1121]-[1130]

3.1 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 usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] 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.

5. It is not in contention that the Claimants have accumulated in excess of 7 years here, even allowing for their brief two-month absence in 1999.
6. The Claimants are “port” cases. On each entry to the UK they applied at port and were granted temporary admission. That is permission to stay whilst their application for leave to remain is considered.
7. In R v Secretary of State for the Home Department ex parte Mobin Jagot [2000] INLR 501, in an application for judicial review the issue was whether the SSHD were entitled to conclude that the applicant, then 14, should be refused indefinite leave to remain. Despite his having spent a substantial formative part of his life in the UK, the SSHD decided that there were strong reasons for him to be uprooted. He was Malawi born, and had come to the UK with his grandparents, arriving in 1990 with three months leave to enter expiring in April 1991 but his education in English schools continued thereafter. In 1998 he was sent to Malawi to visit a maternal grandmother. He was extremely unhappy, did not speak the language, felt a stranger, returned to the UK in April 1998, and sought leave to enter, which was refused. Letters were exchanged between his solicitors and the Immigration Service Headquarters. There was no reason to grant indefinite leave to remain as a matter of extra-statutory concession. Some aspects of the case turned upon the desire of the boy’s grandparents desire to adopt him. There was however consideration of the policy, DP 069/99, and in a letter of the 28^th February 2000 the Immigration Service HQ wrote “the change in policy relates specifically to deportation and illegal entry cases and not to on-entry port cases such as your client's.” As to whether the disruption to the child’s existing life, based upon formative years spent in the UK, could be justified by the possibility of future family life in Malawi and by the requirements of immigration control, Moses J said at paragraph 39:

“…………………it is difficult to understand how the requirements of immigration control can play any significant part in adding to the strength of the reason for the disruption. It is inherent in policy 069/99 that there has been a breach of immigration control. Were it not so, there would be no need for this policy at all. Further, the policy contemplates that requirements of a firm system of immigration control do not extend to the need to uproot children without strong reason. Indeed the rationale of the policy is to meet the requirements of fairness as well as firmness because, no doubt, the Secretary of State acknowledges that a system of immigration control which is unfair can never be truly effective.”

8. The Defendant is criticised for his failure to focus on the guidance said to have been forthcoming in Jagot. It is submitted that he has failed to provide any proper or strong reasons for disrupting the Claimant’s family and private life, and by so doing is said to have acted unreasonably.
9. Asylum seekers by definition arrive in the United Kingdom without permission. Thus these Claimants acquired temporary leave. The Defendant urges that his policy applies only to after entry cases and not to "port" cases, and in Jagot that very argument was advanced.
10. In Macdonald’s Immigration Law and Practice 5^th Edition paragraph 16.45 reads as follows:

“To the so-called ‘ten year rule’ and ‘fourteen year rule’ we now have to add the ‘seven year rule’, a separate concession embodying a general presumption against removal of families with children who were born in the UK and have lived here continuously to the age of seven or over, or where, having come to the UK at an early age, they have accumulated seven years’ or more continuous residence. There may be circumstances where enforcement action is still considered appropriate, for example, where the parents have a particularly poor immigration history and have deliberately caused serious delay to the consideration of their case. Relevant factors will include the length of the parents’ residence without leave, whether removal has been delayed through protracted and repetitive representations, or by going to ground; the age of the children; whether they were conceived when either parent 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; and whether either parent has a history of criminal behaviour or deception.”

11. In his refusal letter of the 19^th July 2002 the Chief Immigration Officer wrote where relevant as follows:

“The 7 year concession applies only to after entry, enforcement cases. It does not apply to on entry port cases. It is not appropriate, therefore, to rely on the 7 year concession as a ground for leave to enter. That said, consideration has nevertheless been given to whether, in view of the family’s circumstances, there is a case for granting leave to enter exceptionally, outside of (sic) the immigration rules.” And later “The Chief Immigration Officer on 14^th June did not consider that it was appropriate to grant leave to enter to Mrs Kasprowicz and her children on the basis of the representations you made about the length of the children’s residence in the United Kingdom. In reaching this decision it was noted that Mrs Kasprowicz was first refused asylum in 1998 and left the United Kingdom with her children the following year. When she returned with her children in 1999 she did so with the knowledge that there could be no expectation that there would be a different outcome to her fresh application for asylum. Mrs Kasprowicz has never been granted leave to enter and never had any expectation that she would be granted leave to enter.”

12. For the Defendant Mr Eicke argues that there is no basis under the Immigration Rules or under statute for an expectation that leave to remain would be granted. The stark issue in this case is whether there should be a concession outside the Rules. He reminds me that unlike family law jurisdiction, the welfare of the child is not in cases such as this paramount.
13. Chapter 18 of the Immigration Directorate’s Instructions, The Long Residence Concession, reads where relevant as follows:

1.1 Background. On 14^th October 1969 the United Kingdom ratified the European Convention on establishment, ….. nationals of any contracting party who have been lawfully residing for more than 10 years….. may only be expelled for reasons of national security or…. public order…. health or morality. Home Office practice has been to extend this provision in three respects: …… to allow those who have been here illegally to benefit.

14. The submission of the Defendant is that, that must be read so as to read in “to allow those who have been here as a matter of law illegally to benefit.” His contention is that as a matter of law these Claimants cannot qualify, since they have temporary admission and require leave to enter. The concession catches only those who as a matter of law are resident, overstayers for example, or illegal entrants. It does not catch "port" cases who have still not “entered”. Fortification he submits can be found from paragraph 2 of the Directorate’s instructions which reads where relevant:

“when considering an application, where a person has 10 years or more continuous lawful residence, or 14 years continuous residence of any legality…..”

15. Yet greater fortification is derived from R v The Immigration Appeal Tribunal ex parte Tarlok Singh appeal no CO/2736/1999 notified 7^th June 2000. The facts need not detain us, but, dealing with the relevant concession, the Immigration Service HQ had said “the concession announced on the 24^th February applies only to those facing deportation or removal. It has been decided that it will not normally be appropriate to proceed with deportation or removal in cases where there are children who have lived here for 7 years.” “Deportation” and “removal” are terms of art submits the Defendant. Deportation connotes an intention to terminate existing leave, and removal applies to those who are resident here unlawfully. Removal as a matter of law does not and cannot catch those who have not “entered”.

Moses J in Jagot did not decide upon whether the concession extended to port entry cases or not. He found that breach of immigration control was inherent in the arguments advanced, but reached his conclusion by accepting that the Secretary of State’s decision was based upon Mobin’s ability to have effective family life in Malawi, a rational conclusion, but nevertheless not capable of being a strong reason for disrupting or uprooting the child. The flaw in the reasoning was the failure to focus upon disruption and its justification. Nowhere in the judgment does he address the narrow issue in this case, that is whether the concession extends to port cases or not.

16. Neither did Jackson J in Tarlok Singh find it necessary to address this issue. That case turned upon the entitlement of the Secretary of State to find exceptional circumstances warranting deportation. McDonald on Immigration does not consider "port" cases in this context.
17. I remind myself that the policy document is no more than guidance and lacks statutory force, but I am not persuaded that the Secretary of State’s arguments are flawed. It would have been simple for “port” cases specifically to have found inclusion within the Guidelines. No authority has been cited which suggests that the adverb “illegally” should be construed other than narrowly, in the way I have rehearsed. In my judgment only those who as a matter of law are resident acquire the advantage of the concession, and since, as a matter of law these Claimants are not in my view resident, it follows that they cannot succeed.
18. I turn to Mr Ali’s final submission, as to a breach of the European Convention on Human Rights, articles 14 and 8. He contends that the decision here challenged is discriminatory. Advancing his Article 8 submission, he cited a psychological report of 14^th September 2002 upon the first Claimant, whom the author Dr Alessandra Lemma felt would upon return to Poland suffer extreme distress and anxiety, withdraw into himself and possibly refuse to attend school. This must, it is argued, come within the right to private life and taken together with Article 14 the decision would be discriminatory.
19. The Secretary of State contends that the discriminatory argument is never reached. There is no differential treatment as between comparable situations and the 19^th July 2002 letter from the Chief Immigration Officer encapsulates why. When Mrs Kasparowicz the third Claimant returned she did so with no expectation that there would be a different outcome to her fresh application for asylum. She therefore never had any expectation of leave to enter. The Adjudicator having considered this argument said “I can accept that the removal of the Appellant and her two sons from the UK will be painful, but it is not a disproportionate step and does not constitute a denial to family life.” In reaching that decision he made plain that he had read the relevant paragraphs in the refusal letter. In my judgment his determination is not impeachable. The psychological report upon the first Claimant in my view could if at all go only to Article 3, the prohibition on torture, but not to Article 8.
20. For the reasons given this claim must fail.