England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		13 October 2004

1. MR JUSTICE GIBBS: The claimant applies for judicial review of the decisions of the defendant, the Secretary of State for the Home Department, dated 11th August, 27th September and 19th December 2003. Those decisions granted the claimant discretionary leave to remain in the United Kingdom for three years and refused to grant him indefinite leave to remain. The series of decisions referred to in effect consisted of an original decision and confirmation of that.
2. Discretionary leave was granted following an adjudicator's decision on 25th April 2003 which allowed the claimant's appeal against removal from the United Kingdom on the basis of Article 8 of the European Convention on Human Rights, such appeal being against the Secretary of State's earlier refusal of his claim. The Secretary of State for the Environment had previously decided on 4th January 2002 to refuse the claim and to direct the claimant's removal to Pakistan, his country of nationality. Permission to bring the present claim was at first refused on the papers by the single judge and subsequently by Sullivan J at an oral hearing on 12th February 2004. However, the refusal of permission was appealed to a judge of the Court of Appeal; Maurice Kay LJ, granted permission to apply for judicial review on 20th May of this year.
3. The account of events leading to this claim are as follows: on 10th September 1993 the claimant arrived in the United Kingdom on a visa permitting a single visit; on 14th February 1994 he made an application for asylum; On 19th February 1996 that application was refused, and the claimant appealed. Subsequently there were several changes of solicitor by the claimant. For the purposes of these proceedings no blame is attached by the Secretary of State to the claimant for any of the omissions which apparently followed. It may be, however, that one or more of the firms of solicitors were incompetent or in default in the way in which they represented the claimant.
4. On 1st August 1997 the IND department of the Home Office were informed that a firm of solicitors called Bajwa were now acting for the claimant. It appears from the evidence, both from claimant and the defendant, that the defendant did not inform the Immigration Appeal Authority of that change of solicitors until 23rd October 1997, which was when the claimant's appeal was due to be heard.
5. It appears further that Bajwa did not give that information to the Appellate Authority. The consequence seems to have been that the claimant did not attend and was not represented. However, the presenting officer of IND did then tell the adjudicator of the new solicitor. The events to which I have referred are merely part of a chain of events involving changes of solicitor by the claimant.
6. However, the result was that, following the claimant's non-attendance, a decision was promulgated on 30th March 1998 dismissing the claimant's appeal on the basis that it had been abandoned.
7. On 21st October 1998 the claimant's new solicitors asked the Secretary of State for details of the claimant's immigration status, a claim which was repeated on 25th February 2000. In 2001 the claimant's solicitors wrote to the Secretary of State asking for exceptional leave to remain on the basis of a human rights claim. On 4th January 2002 the Secretary of State refused that claim and notified that he intended to remove the claimant. On 25th April 2003 the claimant's human rights appeal was allowed by an adjudicator. On 9th September 2003, and in the months that followed, the decision now challenged, namely to grant discretionary relief to the claimant until 11th August 2006, was made and maintained despite representations that the claimant should receive indefinite leave to remain. Representations were made on the claimant's behalf, among other people, by his member of Parliament.
8. I have already referred to the chronology of applications to this court and to the Court of Appeal for permission to bring this claim.
9. As already mentioned, the claimant's asylum claim was refused in 1996. Therefore the circumstances of that claim are not directly relevant to the present point. Essentially, however, the claimant's case was that he was a member of a political party in Pakistan known as the Pakistan Muslim League or PML. He said that he had been persecuted and harassed by members of another party, the Pakistan People's Party. Essentially, it was the seriousness of the persecution and harassment to which he was subjected which he said caused him first to hide and then to leave Pakistan and which caused him to remain in fear of return once having settled in this country.
10. The fuller particulars of the asylum claim are set out in the reasoning of the adjudicator on 25th April 2003.
11. With regard to the claimant's Article 8 claim the adjudicator said, among other things, as follows:

"16. He submitted a further Article 8 claim on the basis of his family life which had developed in the United Kingdom over the last ten years. He said he had worked for a short time and then applied for benefits after losing his employment. He had studied hard during the evening to grasp the English language and can now speak English fluently and read and write English. At present he is a minicab driver earning some £300 a week and has had that occupation for some three years. He is of impeccable character and has never been involved in any criminal activity whilst in the UK or elsewhere. He said that he has spent a third of his life now in the United Kingdom and nearly all of his adult life and would find it unduly harsh to adapt to the way of life in Pakistan now."

12. The adjudicator went on to describe a number of other relevant matters including letters recorded as received in support of the claimant's case. The adjudicator continued:

"20. He also attends the East Ham Mosque on a regular basis attending Friday payers and sometimes he goes more than once a week. He also referred to several correspondence in his bundle in particular from Tom Ward, the Director of the Asian Friendship Centre dated 27th March 2003. He stated that `he is very helpful to others and serves the community through his willingness to help people with their transportation needs through his reliable minicab service'. He also says that he regularly attended the Point of View Community Organisation in Forest Gate, a meeting of various community people that comes together twice a month. Mr Shahid also had two further witnesses from whom I did not hear oral evidence but who had given detailed statements supporting his extensive community ties. In particular there were statements from Muhammad Tufail; from the Pakistan Muslim League Greater London Region and from the Al-Ukhuwat (Brotherhood) Trust. Furthermore there was a letter from Mr Suitan, a managing director of Apollo Minicabs in Ilford confirming that Mr Shahid had worked for the last three years, had never received any complaints about him from customers and was described as 'hard working, honest, punctual, polite and reliable who is always willing to give a helping hand to anybody that required it.'"

13. The adjudicator went on to describe how the claimant remained in touch with his family in Pakistan but had over the years lost a number of his ties with that country and how he would find it hard now to leave the United Kingdom because of his friends and his links here.
14. In making his findings the adjudicator directed himself that he would have to determine four separate questions. First, is there an interference with the right to respect for private life which includes the right of physical and moral integrity and family life; second, is that interference in accordance with the law; third, does that interference have legitimate aims and, fourth, is the interference proportionate in a democratic society to the legitimate aim to be achieved.
15. The adjudicator said that he had regard to the fact that a substantial part of the claimant's time in the United Kingdom without his immigration status being decided could not be said to derive from his own fault. He pointed to the two year delay between 1994 and 1996 in the Secretary of State deciding his asylum application. He referred to concerns which had been expressed that the claimant had been badly advised by his solicitors, and that he had not been informed of the earlier asylum hearing before the adjudicator due to errors on behalf of the Immigration Appellate Authority. The adjudicator formed the view that the errors had a material effect, that they meant that the Home Office took no effective action to remove the claimant from the jurisdiction even though his whereabouts were known and that he only began to be properly represented in 2001. The adjudicator found it to be relevant that there had been inadequacies in legal representation and there had been serious delays caused by either errors or lack of efficiency in the Home Office procedure itself. The adjudicator went on to accept that the claimant had even as a single person established a well-defined and deep-rooted family life over the last 10 years. He was clearly someone who was hardworking, trustworthy and honest. This was clearly supported by close friends who were willing to come to court on his behalf and by the letters of support.
16. In his findings the adjudicator went into further detail as to the depth of the claimant's connection with the United Kingdom. However, the adjudicator did also find that the claimant's removal from the United Kingdom would be in accordance with the law and would have the legitimate aim of maintaining immigration control. But in the light of the adjudicator's views as to the extent to which his Article 8 claim was engaged, in that his family life had been established, he went on to find that the claimant's removal from the United Kingdom would be disproportionate for the legitimate purposes of immigration control. He found that the claimant was someone who had made deep-rooted friendships and adjusted very well to life in the United Kingdom, had learnt to read and write and speak English fluently and had made a significant contribution to his community. He observed that a single man had no less a right to family life than a person who is part of a normal family as one is normally constituted with a husband, wife and children. He said that a single person could experience significant distress and upset both in employment and social terms should he be removed from the environment in which he has lived for a significant period.
17. In applying human rights principles the adjudicator found that this was a highly unusual case which involved a far longer residence than was normally the case. Thus interference in removing the applicant from the United Kingdom would be wholly disproportionate in a democratic society. Accordingly, the human rights appeal was upheld.
18. In recent statements the claimant reiterates his developed links with the United Kingdom which were found to have constituted and still do constitute family life. The claimant emphasises the stress which he has been caused by the refusal to grant indefinite leave, stress which he says threatens his health. This could, if necessary, he says be confirmed by his general practitioner, although it is right to say that there is no medical evidence filed and indeed the claimant does not take medication for his condition.
19. Having heard most helpful submissions from counsel for both sides it seems to me that the applicable legal approach to this claim is as follows: the challenge to the Secretary of State's decision should succeed if one or more of the following grounds were to be established, those being a very brief summary of the grounds originally relied upon in support of this claim: (1) that the Secretary of State made an error of law in arriving at his decision, for example, by misdirecting himself in failing to take into account a significant, relevant factor or by taking into account irrelevant factors. But this ground, for reasons which will appear in due course, is no longer relied on on the claimant's behalf; (2) that the Secretary of State's decision was in the circumstances irrational in the Wednesbury sense or plainly wrong; (3) that, quite separately from any other grounds, the Secretary of State's decision was an unjustified infringement of the claimant's rights under Article 8 of the European Convention on Human Rights. Accordingly, unless this court quashes the decision it will in itself be infringing the claimant's rights in the same way. In relation to this third ground the court must consider the matter afresh in a supervisory context. It must itself ensure that the effects of the decision do not infringe the claimant's human rights. The court is not confined merely to reviewing the correctness and rationality of the Secretary of State's decision in the human rights context. Mr Mukherjee contends in fact in relation to the second possible ground of challenge that the courts should give an enhanced level of scrutiny to the Secretary of State's decision and that its approach should be broader than simply an approach based on Wednesbury principles. That is not accepted by Miss Richards on behalf of the Secretary of State but, as I understand it, subject to that one disagreement counsel are broadly at one in the legal approach that this court should adopt.
20. The legal framework within which these matters fall to be considered is this: it is common ground that the claimant does not qualify for any form of leave to remain in the United Kingdom pursuant to the current immigration rules. It therefore follows that the challenged decision is one to be made entirely within the scope of the Secretary of State's discretion. He has formulated a policy governing the exercise of his discretion in such cases. He had in making the challenged decision, it is agreed, a duty to have regard to the policy in arriving at his decision. He could properly, provided he had regard to the policy, depart from it in exceptional circumstances. Indeed it is submitted on behalf of the claimant that he was wrong not to find that the claimant's circumstances were exceptional and wrong not to find that in the claimants's case he should depart from his policy and grant indefinite leave to remain. It is common ground that the decision, although within the Secretary of State's discretion, is one that this court can review in order to ascertain whether the Secretary of State's discretion was exercised lawfully and rationally. It is accepted, as indeed it has to be, that the Secretary of State was not entitled to act on a whim or on the basis of mistaken or irrelevant considerations nor was he entitled to act in such a way as to infringe the claimant's human rights.
21. Under all those circumstances it is necessary to examine the policy in some detail and to examine it in the light of the claimant's individual circumstances. By way of introduction it is stated in the policy as follows:

"The system of granting leave to people exceptionally outside the Rules has been changed. The new system applies to all decisions taken on or after 1 April 2003. Exceptional leave has been replaced by leave granted on the basis of Humanitarian Protection, details of which are set out in the API on Humanitarian Protection, and by Discretionary Leave for a limited number of cases which do not qualify for Humanitarian Protection but qualify for a period of leave. This instruction explains the limited circumstances in which it would be appropriate to exercise this discretion to grant leave outside the Rules."

22. The claimant falls within that limited category, not within the category of humanitarian protection. Under the heading "Key points" there appears, among other things, the following:

"Discretionary Leave, in the context of an asylum, human rights or Humanitarian Protection claim, is to be granted only if a case falls within the limited categories set out in this instruction ... It is intended to be used sparingly."

"2.2 Cases where removal would breach Article 8 of the ECHR

"Where the removal of an individual who has made an unsuccessful asylum claim would involve a direct breach [of] Article 8 of the ECHR (that is by breaching their right to a private and family life in the United Kingdom) they should be granted Discretionary Leave. This is a qualified right. Article 8(2) sets out where a State will be justified in breaching the right set out in Article 8(1)."

23. The relevant provisions about the duration of grants of discretionary relief are contained in section 5:

"5.1 Standard period for different categories of Discretionary Leave."

"Paragraph 2.2 (Article 8 cases)."

24. This paragraph deals first with marriage cases and then continues as follows:

"... in other Article 8 cases the standard period is 3 years."

25. Section 6 of the policy goes on to deal with revocation of discretionary leave and provides that the grant of discretionary leave will not normally be actively reviewed during its currency. The section then sets other out the circumstances in which consideration shall be given to revoking leave. These include the voluntary actions of an applicant. It is made clear that revocation will not be triggered simply by travel abroad or return to the country of origin but by more substantial grounds. There are other limited circumstances in which revocation may be considered. These include the commission of very serious crimes and situations where it is subsequently revealed that leave was obtained by deception. It is to be observed that the grounds for revocation are few and serious.
26. Section 7 deals with applications for further leave. It contains the following provision:

"A person will not become eligible for consideration for settlement until they have completed 6 years of Discretionary Leave."

"An individual should apply for an extension of Discretionary Leave shortly before it expiries. The application will be considered in the light of circumstances prevailing at that time.

27. Under the heading, "Consideration of the extension request" it is provided that:

"Extension requests will normally be the subject of an active review, to decide whether the person still qualifies for Discretionary Leave."

28. It is said that the review will normally be carried out on the papers but there will be discretion to conduct an interview to ascertain further information where this is considered appropriate. It is said that the nature of the review will depend on the reasons why Discretionary Leave was granted. It may, for example, involve consideration of the current family situation of the applicant, the conditions in the country of origin, whether reception arrangements for a child are still unavailable or whether there is still a barrier to the removal of an excluded person.
29. It will already be clear from the provisions referred to that not all the considerations are relevant to this claimant. Under 7.2: "Granting an extension" there appears the following:

"Where an individual still qualifies for Discretionary Leave (and does not qualify for leave on another basis -- ie under the Immigration Rules) they should normally be given an extension of stay for a period in accordance with paragraph 5 of this instruction."

30. There is an exception provided for to which I need not refer. Under section 8, "Applications For Settlement" it is provided that:

"A person will normally become eligible for consideration for settlement after completing 6 continuous years of Discretionary Leave... An individual may apply for [indefinite leave to remain or] settlement at the 6 ... year stage shortly before Discretionary Leave expires. The application will be considered in the light of circumstances prevailing at that time."

31. An application for extension will, it is said, be subject to a right of appeal. Where settlement is applied for it is said that where a person still qualifies for Discretionary Leave they should be granted indefinite leave to remain or settlement. It is provided that certain categories of applicant are excluded from that general principle but those exclusions are either inapplicable to this claimant or extremely unlikely. Under the category "extremely unlikely": it is said that for example applicants may be denied settlement if ministers decide that it will be conducive to the public good for settlement to be denied. In the case of refusal of applications for Discretionary Leave or for indefinite leave to remain, there exists an appeal against such refusal on human rights grounds. Article 8 of the Convention provides as follows:

"Article 8, Right to respect for private and family life:

(1) Everyone has the right for respect for his private and family life, his home and his correspondence;

(2) There shall be no interference by a public authority with the exercise of this right, except such as in accordance with the law and necessary in a democratic society, in the interests of national security, public safety or economic well-being of the country, for the prevention of disorder of crime, for the protection of health and morals or for the protection of the rights and freedoms of others."

32. Before turning to the submissions of the parties it would I think be helpful to refer to the judgment of Maurice Kay LJ which gave permission to bring this claim. He said as follows:

"8. The grounds of appeal can be summarised as follows. The first is that the judge below failed to appreciate the unusual nature of the applicant's case. Given the basis of the adjudicator's determination the applicant's case under Article 6 [the judge clearly meant Article 8] can only get stronger the longer he remains in the United Kingdom. The respondent's decision not to grant indefinite leave at this stage was therefore unreasonable. The second ground is that the judge below failed to consider the fact that the respondent had fettered his discretion by applying a policy without regard to the particular circumstances of the case.

9. I consider that those matters are arguable and that leave to apply for judicial review ought to have been granted. It is right that the Secretary of State is entitled to devise a policy, provided that the policy is not over-rigidly applied. The policy in this case is one that deals with a number of different situations. It seems to me that when one studies the letter of 11t August 2003 with its references to the situation in the other country, and when one also takes into account the response of the Home Office to the letter written by the solicitors dated 27 September 2003, it is quite apparent that the particular circumstances of this case had not properly been considered. If they had been, the standard paragraph would not appear in the letter of 11 August 2003. The letter of 27 September 2003 goes on to explain the position, but talks in terms of those granted leave on `protection grounds other than under the refugee Convention'.

10. This is not a case that is in any way to do with protection. It is now a case in which leave is being granted because this man has been allowed to stay in this country so long that he has put down firm roots here and he has a right afforded to him by Article 8. The following paragraph of the letter of 27 September 2003 goes on again to talk in terms of the situation and makes reference to Article 3. It gives an example where an applicant would face a real risk of treatment contrary to Article 3 if removed from the United Kingdom. Why that should be put in a letter which is dealing with an Article 8 situation is not immediately clear to me. It is suggestive of a blanket policy being applied without any consideration of the particular facts of this case. That is the second ground that was raised in relation to this matter, and it seems to me that it is clearly arguable. With respect to the judge below, he does not seem to have addressed those matters."

33. With regard to that ground, which is the first ground to which I referred in my summary earlier in this judgment, it is conceded that it can no longer be pursued. It is indeed most unfortunate that the letters written on behalf of the Secretary of State contained matters which are irrelevant to this claimant's case and directed to entirely different situations. However, the Secretary of State has now lodged evidence in support of its case here, notably from Mr Ponsford, which demonstrates that proper consideration was given to the principles applicable to this claim and Mr Mukherjee has realistically accepted that.
34. Maurice Kay LJ continues as follows:

"11. The other aspect of the matter which causes me concern and in my judgment merits argument, relates to the position as put forward by the applicant that the failure to grant indefinite leave can only be a matter of putting him in a state of uncertainty for a prolonged period. It seems to me at least arguable that that in itself might amount to a breach of Article 8 by the United Kingdom. It is not an interference in the sense of removing the person from where he has put down firm roots but the right to respect for one's private life includes a right to know where one is going to live and the circumstances in which that would be altered.

12. To date no sensible explanation has been given by the Secretary of State to explain circumstances in which this man might have to return to Pakistan. He, therefore, cannot make long terms plans confident in the knowledge that he will be allowed to remain in this country. That, it seems to me, at least arguably, does in itself amount to a breach of Article 8."

35. The claimant's submissions have been clearly set out in Mr Mukherjee's written argument and helpfully developed by him orally. I will be forgiven if I summarise them very briefly. He points to the length of time which the claimant has spent in this country. Realistically he says therefore the only factors which could possibly change over the next three years relate to the claimant's relationships with his friends in the United Kingdom and his family in Pakistan. In reality those factors are highly unlikely to change to any significant degree and, in any event, the family life which he has built up in this country is already an immutable fact. Any other matters which could lead to his leave not being renewed such as, for example, serious criminal convictions are (a) highly unlikely and, (b) could give rise to the claimant's deportation or removal even if he were to be granted indefinite leave to remain. The likelihood that the claimant's Article 8 rights were likely to strengthen was recognised not only by Maurice Kay LJ but by Sullivan J in their respective judgments. It is submitted that the limited grant of leave is insufficient to safeguard the claimant's Article 8 rights. There is no presumption of any further period of discretionary leave. Furthermore, it is submitted that no reasonable ground has been given for failing to treat the claimant's case as exceptional and one can only conclude therefore that the policy has been applied with wholly unacceptable inflexibility. It is further submitted that the failure to grant indefinite leave to remain does not respect the substance of the adjudicator's decision and his findings; further that the decision to deny the claimant indefinite leave to remain is a breach of Article 8. Mr Mukherjee points to Strasbourg jurisprudence which recognises the expulsion of family members or the separation, or decisions which give rise to the separation, of family members from one another as potentially being infringements of an individual's Article 8 rights. He goes on to submit although the wording of Article 8 is such as to prohibit interference with family life, nevertheless it is well established in law that there are or may be positive obligations imposed upon the State to take action if the result of inaction would be an interference with family life. It is submitted that the decision of the Secretary of State effectively leaves this claimant in limbo and interferes with or prevents his proper social integration. The effect on the mental state of the claimant is also relied upon. It is said the principal or sole justification for the policy of staged grants of leave to remain for a limited period must be the need for the Secretary of State to wait and see whether the individual in question is going to settle down and develop proper ties in this country. Mr Mukherjee submits that there can be no doubt of that in the claimant's case and therefore there is no need to apply the policy. In support of his submissions the claimant relies on the case of Slivenko v Latvia, a decision of the European Court of Human Rights, dated 9th October 2003, reference 48321/99. This case underlines the importance of social integration in the context of Article 8. Ciliz v The Netherlands [2000] 2 FLR 469 case is relied upon as illustrating the positive obligation to promote family life which may arise under Article 8.
36. In response to the submissions of Miss Richards on behalf of the Secretary of State can be summarised as follows. First, that it is wrong to say that the claimant's circumstances could not change. In so far as that is a basis for the claim it is disputed. Mr Ponsford's statement supports the Secretary of State's case in this regard. It is submitted that the mere fact that there was no likelihood of change did not justify, let alone compel the Secretary of State to disapply his policy. If that were the case there were many people who could formulate an argument based upon that submission. There are many people granted discretionary leave, in other words, who could just as well support a claim that their circumstances and family ties were unlikely to change.
37. Secondly, Miss Richards submits it would be wrong for the Secretary of State to speculate or make assumptions about the future of people with leave to remain. It is impracticable for the Secretary of State to investigate closely the circumstances of every case. It is submitted that in that context the staged approach which the policy provides gives a predictability to the system so that people making applications should know reasonably where they stand. Thirdly, she submits that the Secretary of State is fully entitled to take the view that the policy should be departed from only in exceptional cases. Fourthly, she submits that long residence in this country or residence of some 10 years is by no means an exceptional circumstance whether taken on its own or with the other circumstances which apply to the claimant's case.
38. With regard to the uncertainty, the distress, the anxiety, Miss Richards' submission is that these are not of sufficient degree even to begin to give rise to a breach of human rights. The claimant, while no doubt in a more uncertain state than if he were given indefinite leave to remain, is legally entitled to set up a company, buy a house and so on and there is no legal impediment to his full participation in life in the United Kingdom. It is submitted that the Article 8 rights of the claimant give him an entitlement not to be removed from this country, that is an entitlement which the Secretary of State has fully accepted and which is reflected in the challenged decision. Miss Richards submits that the Article 8 right cannot and does not arise in the context the category of leave to remain which is being granted and that it is simply not arguable that there is any positive obligation arising here to grant immediate settlement rights. She submits that there is no bar as a result of this decision to any social integration of the claimant into society in the United Kingdom. Under those circumstances Miss Richards submits there can be no question of irrationality on the part of the Secretary of State in making a decision to apply the terms of his policy to the claimant's case.
39. The submission is further made that the authorities touching upon the question of infringement of Article 8 indicate that the threshold which has to be attained in order to establish a breach is an extremely high one. It is capable of being attained if the effect of the challenged decision is to separate members of the family, one from another, or to remove someone entirely to another country from the enjoyment of a family life which they have built up. She submits that there is no authority which even begins to suggest that Article 8 is engaged in issues about what status of leave to remain in a country where family lives are enjoyed is granted. The authorities relied upon are The Queen on the application of Razgar v The Secretary of State for the Home Department [2004] 2AC, 368; The Queen on the application of Anufrijeva v Southwark London Borough Council and ors, 6 CCLR, December 2003, page 415 and another important decision cited in both these cases, namely Bensaid v The United Kingdom [2001] 33 EHRR.
40. In my judgment, the starting point here is the policy itself. It is not suggested that that policy is irrational or unlawful. This is not a case where it can be said that the Secretary of State failed to have regard to the policy. Indeed, the complaint is that he followed it rigidly and without regard to the individual circumstances. Before considering that submission it is right to note, as previously mentioned, that the policy itself is entirely discretionary. Thus the Secretary of State in granting leave is not fulfilling or failing to fulfil any form of statutory duty imposed upon him. He is exercising his discretion, his only duty being to exercise it rationally and lawfully and in accordance with the claimant's human rights. It is entirely understandable, with respect, that Maurice Kay LJ should have granted permission for judicial review. One of his main reasons for doing so was that letters sent on behalf of the Secretary of State undoubtedly referred, at least arguably and probably more than arguably, to irrelevant matters suggesting that a substantial basis upon which the challenged decision was made was erroneous. As already mentioned, that ground, which was understandably in the forefront of Maurice Kay LJ's mind, falls away. Furthermore, Maurice Kay LJ in the passage already quoted observes that no sensible explanation has been given by the Secretary of State to explain the circumstances in which a claimant might have to return to Pakistan. This court is in a more informed position than was the learned Lord Justice. The detailed particulars of the policy have been set out before the court and it is clear that there are only very limited circumstances under which the claimant would be at risk of being removed to Pakistan. Indeed, the terms of the policy itself give rise to a presumption that in the absence of a significant change of circumstances the discretionary leave should be extended for a further three years in due course and that thereafter, again in the absence of a significant change of circumstances, it is to be presumed that normally indefinite leave to remain will be granted.
41. Against that background, I turn to the arguments on rationality. In my judgment the Secretary of State plainly was and is entitled to attach considerable weight to his stated policy. Departure from it in favour of a particular applicant would tend to jeopardise the firm and fair system of immigration control. A number of others are, according to the evidence, likely to be able to claim exceptional treatment if this applicant were permitted to do so. In that regard I accept Miss Richards' submissions. They are based, at least in part, on the evidence of Mr Ponsford which includes the following:

"(8) In practice, there may be many people in the second and third categories [this claim is in the third category] whose circumstances are very unlikely to change. For example, these categories will include people who fear their national governments for reasons outside the Refugee Convention, who have close and long-established family ties in the UK, who are stateless, and who are seriously ill with little chance of recovery. It may well be that on the facts of their particular cases they could argue that their circumstances will probably not alter materially. On the other hand, there are many whose circumstances may change, and some whose circumstances do change despite the fact that a change seemed very unlikely when leave was first granted."

42. I accept that evidence, since it accords with ordinary experience and common sense. In cases, unlike the present one, family relationships may break down and re-form in a manner which wholly alters the considerations applicable under Article 8. In the case of this claimant, although it is unlikely, it is quite foreseeable and possible that he will seek to renew and strengthen his ties in Pakistan rather than in this country despite the acknowledged fact that (at the age of approximately 30) he has spent his 20s in this country.
43. In my judgment, there is nothing about the claimant's history or the duration of his stay in England which should have driven a reasonable Secretary of State to the conclusion that his case was exceptional. Do the findings and reasoning of the adjudicator on 25th April 2003 make a difference so that taken with all the other factors the Secretary of State should have regarded them as exceptional? The adjudicator's findings about his family life in England are now common ground. The Secretary of State's decision is not inconsistent with the adjudicator's finding that his removal would constitute a breach of Article 8 since the decision itself does not involve removal. On the contrary, it gives leave to remain. The adjudicator did also make his findings concerning default on the part of the Secretary of State and the contribution that this made to the failure of the claimant's asylum claim and the delay. Default was indeed conceded by the Home Office representative at the hearing. A detailed statement from Mr Montilla filed by the Secretary of State in these proceedings seeks to provide a full analysis of events which shows that the concession was not well made and that the Secretary of State was and is substantially free from blame. Be that as it may, I am prepared to assume for the purposes of this claim that some blame may attach to the Secretary of State in two respects: First, in not notifying the Immigration Appellate Authority of the claimant's new solicitor or his address prior to the 1998 hearing, though it is right to say that the primary responsibility for this lay on the claimant's then solicitors for not making their own inquiries of the authority; second, in the delays in dealing with the asylum claim itself and subsequently the delays in setting removal directions.
44. As to the first aspect of the matter, it is pure speculation whether the adjudicator would have found in the claimant's favour had he attended the asylum appeal. The primary responsibility for his absence lay with the claimant's then solicitor for his failure to attend. As to the second aspect, the delay in removal, far from prejudicing the claimant that has, if anything, had the unintended effect of allowing the claimant to strengthen and deepen his family life and, hence, support his Article 8 claim.
45. In my judgment, even taking the understandable criticisms made of the Secretary of State by the adjudicator at their highest, they do not render the Secretary of State's decision to grant discretionary rather than indefinite leave irrational. It is certainly true that there is no particular reason to think that the claimant's circumstances will change in the next two or three years so as adversely to affect consideration of his case under the policy. But I cannot see that that is in itself a reason to grant indefinite leave to remain. As I have said, a change of circumstances is at least a significant possibility. The adjudicator's finding was that removal would infringe the claimant's Article 8 rights. In my judgment, it was an entirely rational response to that finding to apply to the claimant's case the policy criteria which put him on the path to a grant in five or six year's time of indefinite leave to remain. The court should in any case, in my judgment, be slow to intervene where, as here, the very basis of the application is an attack upon the exercise of the Secretary of State's discretion and where no attack is made on the Secretary of State's policy. The case that it was irrational not to treat the claimant's situation as exceptional and irrational to apply the policy in his case has been put very eloquently by Mr Mukherjee, but it is a bold submission which cannot here come close to succeeding. As to the degree of scrutiny, which consideration of this issue requires, I doubt whether it requires the degree of heightened scrutiny for which Mr Mukherjee contends. It does not concern a breach of Article 3 rights. It does not concern a decision which could expose the claimant to persecution or physical danger. It is a decision which in fact permits the claimant to remain in this country and preserves his right to oppose any future removal. However, I will add this, that even if there is a heightened degree of scrutiny to be applied by the court, it would still not even in those circumstances be possible for me to say that the Secretary of State's decision was irrational.
46. The second remaining basis of the challenge concerns Article 8 and its actual or potential infringement by the Secretary of State's decision. Here I accept that the court's task is wider than the application of Wednesbury principles. I must ask myself whether the decision does constitute an interference with the claimant's rights under Article 8(1) and, if so, whether that interference is justified under Article 8(2). First of all, the context is that the Secretary of State has accepted that the removal would infringe the claimant's Article 8 rights. He has made a decision therefore which permits the claimant to remain in the United Kingdom. Thus, the claimant's Article 8 submission must depend on showing that the Secretary of State should have gone further. In other words, it amounts to saying that the Secretary of State had a positive obligation to facilitate and support the claimant's Article 8 rights by granting indefinite leave to remain. There is little doubt in my mind, having heard submissions on both sides and considered the evidence, that the claimant's Article 8(1) rights might well be somewhat enhanced by the settled status which indefinite leave to remain would confirm. The claimant would know where he stood, though he could not be absolutely confident of remaining in the United Kingdom. He could have an enhanced degree of confidence, there is no doubt of that. He could with greater confidence set up business, buy a property and the like, having more assurance of the length of his time in the United Kingdom. He would not suffer from the nervous stress which he says now affects him because of uncertainty. However, in spite of those factors, the case law on the threshold which has to be reached in order to establish the existence and breach of a positive obligation under Article 8(1) is a high one. It may reached, for example, although not necessarily, where the effect of the State's action is to separate parent and child for example or to remove a claimant from the country where the family ties are established to one where they are not. But, in my judgment, the Secretary of State's decision in this case falls very far short of that threshold. The claimant is not legally prohibited from engaging in business or purchasing property. He is entitled to all the social security benefits whilst in the United Kingdom to which citizens of the United Kingdom are themselves entitled. There is nothing here to prevent him from continuing and deepening his roots and connections in this country or any of the factors which have led to the establishment of family life here.
47. The application of the Secretary of State's policy, together with the decision itself, make it likely that in the absence of any substantial change of circumstances the claimant will in due course qualify for indefinite leave to remain. If he, for any reason, in future receives an unfavourable decision from the Secretary of State despite no substantial change of circumstance he will be entitled to a human rights appeal against that decision. However, as I have said, the policy itself indicates a presumption in favour of the claimant being permitted to remain indefinitely in this country provided that there is no substantial change of circumstance or reason to the contrary.
48. As a result of those matters, I find that there is not in any real sense an interference with the claimant's rights under Article 8(1); but if I am wrong about that then such interference as there may be cannot be more than relatively mild in degree on any view. They would not, in my judgment, be sufficient to outweigh the justification under Article 8(2) which the Secretary of State advances, namely the need to keep a firm and consistent immigration policy.
49. For those reasons, the claim for judicial review must be refused.
50. MISS RICHARDS: My Lord, in the circumstances of the particular case the Secretary of State is content for there to be no order as to costs.
51. MR MUKHERJEE: I am instructed to apply for permission to appeal on this matter. First of all, I think it is acknowledged by my learned friend it is a case of some importance in relation to the application and the discretionary leave policy where human rights claims have been processed or relied on by an adjudicator. It is a matter of some importance to a number of other cases, not simply this case. As I understand it, it is also the first case on the new policy and there are no other reported cases in relation to this.
52. The final matter that I put forward in regard to the permission is in relation to what your Lordship said about the test applied to the rationality of the Secretary of State's policy, whether it is a Wednesbury challenge or whether it is indeed a heightened scrutiny challenge. Your Lordship said it was not relevant because under both tests you would have dismissed the challenge. However, I think that it is important perhaps in relation not only to the facts of this case but in relation to challenges to future applications of policies under the Secretary of State cases, in other cases. So for those reasons I ask for permission to appeal.
53. MR JUSTICE GIBBS: Thank you very much. Miss Richards, if you agree that there is at least one issue here which the parties and litigants generally might feel assisted by if they had a Court of Appeal decision then I will --
54. MISS RICHARDS: I do not think they would, my Lord. Whilst it may be the case that this is the first claim which has challenged policy, it does not follow it was not a challenge to the policy itself. It is a challenge to a decision under the policy. It does not follow that there is a need for the case to be looked at appellate level. It may be that the reason there is no other claim that has been made is that it is a perfectly straightforward policy being perfectly lawfully applied. Your Lordship found both in relation to the irrationality in the Article 8 claim that the submissions made were effectively bold ones, not supported by authority, and that there was not in any real sense an interference with Article 8 or even one that would be justified under Article 8(2). In those circumstances it is very difficult to see that the claimant would have any realistic prospect of success. The reality is that your Lordship has correctly applied straightforward and well-established principles both in terms of rationality and in terms of human rights claims and reached an adverse conclusion to the claimant. In my submission, the grant of permission to appeal would not be appropriate. If the Court of Appeal disagrees, then they should be the ones to decide whether or not to grant permission to appeal.
55. MR JUSTICE GIBBS: Yes. Is there anything further you wish to say?
56. MR MUKHERJEE: No.
57. MR JUSTICE GIBBS: I think that whilst one of course has sympathy on the facts with the claimant's position this is a decision which was made very clearly on those facts in accordance with established principles and although I hesitate to say that in view of the case's appellate history I think there is no realistic prospect of success. The one possible point of law, namely the court's approach on the question of irrationality is really in this particular case, in my judgment, academic. I am grateful for the assistance of both counsel. No application for costs. So no order.
58. MISS RICHARDS: There is no application for costs.

Order: Application for permission to appeal refused; appeal dismissed; no order as to costs.