England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 March 2007

Mrs Justice Black :

1. In these judicial review proceedings, the claimant seeks to challenge the legality of a concessionary policy of the Secretary of State (published as APU Notice 4/2003 and referred to hereafter simply as "the policy") by which certain asylum-seeking families were allowed to stay in the UK, claiming that it was irrational of the Secretary of State to have excluded families like hers from the benefit of the policy.
2. The claimant is a Colombian national. She arrived in the UK on 25 May 1996 with her son who was then 14, having been born on 31 December 1981. Her initial applications to remain, first as a visitor and then as a dependant of an EEA national, were unsuccessful. On 28 May 1999, when her son was 17, she applied for asylum which was refused. The appeal process relating to that concluded in August 2003.
3. On 24 October 2003, the Secretary of State announced the policy in a document entitled "One-off exercise to allow families who have been in the UK for three or more years to stay". The policy has since been amended a number of times. Unless I indicate otherwise, I am referring to the version that was current at the time the events in this case arose.
4. The concession sets out the "Basic criteria of the concession" as follows:

"The basic criteria for deciding whether or not a family will qualify for the exercise are:

The applicant applied for asylum before 2 October 2000; and

The applicant had at least one dependant aged under 18 (other than a spouse) in the UK on 2 October 2000 or 24 October 2003."

5. This formulation of the basic criteria which was introduced in August 2004 is broader than the original formulation which required that on 24 October 2003 the applicant had a dependant of under 18, thus excluding those whose children had been under 18 on 2 October 2000 but had reached majority between then and 24 October 2003.
6. A dependant for the purposes of the policy is "a child of the applicant ….who was or is financially and emotionally dependant on the applicant on the relevant date (i.e. 2 October 2000 or 24 October 2003)."
7. There are other conditions, namely:

i) The family was still in the UK.

ii) The dependant formed part of the family unit in the UK on 2 October 2000 or 24 October 2003.

iii) The initial claim for asylum had been made before 2 October 2000 and

a) The application had not yet been decided or

b) It had been refused and was subject to an appeal or

c) It had been refused and there was no further avenue of appeal but the applicant had not been removed or

d) It had been refused but limited leave had been granted.

8. A dependant who applied in his own right in reliance on the policy had to satisfy more stringent criteria than the main adult applicant in that he had to form part of the family unit on 24 October 2003. A dependant could therefore have enabled the family to qualify for leave to remain by virtue of his presence as a minor child in the family unit on 2 October 2000 but, if he had since moved out and become independent, be unable to benefit from the policy directly himself.
9. The claimant in this case could satisfy all the requirements of the policy except that her son had reached the age of 18 on 31 December 1999 so that by 2 October 2000, although she and her son were still living together and continued to do so until 2004, she had no dependant under 18.
10. She nevertheless made representations to the Secretary of State on 1 November 2005 that she was entitled to the benefit of the policy. The Secretary of State, in a letter of 21 February 2006, refused to grant her leave to remain because her son was over 18 on 2 October 2000. That is the decision that is challenged, the judicial review form having been lodged in March 2006.
11. The Court of Appeal considered the policy very recently in November 2006 in the case of AL (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1619. Neuberger LJ set out the Secretary of State's justification of it as follows:

"The Secretary of State's justification of the family amnesty policy

22. The Secretary of State's contemporaneous explanation for the policy was contained in a Home Office press release dated 24 October 2003. The policy was there described as a preliminary "to the introduction of tough new rules to build on the tremendous progress already made in halving the number of asylum seekers entering Britain this year. The press release then said (in a slightly garbled phrase) that "long standing and highly expensive family asylum claims will be eligible for leave to remain". Reference was made to the benefit of improving "the lives of real families in our communities". It was pointed out that children from asylum seeking families were "especially motivated and doing well at school".

23. The Secretary of State was quoted in the press release as saying that "MP's from all sides appealed to me for such families to be allowed to stay in the UK every week." His statement went on to point out that the Home Office was:

"currently supporting 12,000 families who applied for asylum before October 2000. It is believed that the vast majority will qualify for leave to remain in the UK under the terms of the policy. … Up to 3,000 who are self supporting may also qualify, the families will be given the immigration status of 'indefinite leave to remain' in the UK which means they are able to live and work here without restrictions."

The press release ended by saying that the policy was "designed to remove the current incentive to families to delay removal as long as possible and so save money in support and legal costs". The cost of support was said to arise partly, indeed probably largely, from the fact that many asylum-seekers could not work unless their claims had been accepted, and therefore they (and their families) had to be supported at the expense of the taxpayer, unless and until they had been granted asylum or permission to remain.

24. A letter sent a few weeks later to all Members of Parliament by a Junior Home Office Minister stated that:

"The aim of the exercise is to help eligible families to become integrated into the communities where they have settled by enabling them to sustain themselves through permanent paid employment."

25. We have had the benefit of a more detailed explanation of the factors which drove this policy. (It is right to record that this more detailed explanation was not before the AIT, but, realistically in my view, no objection was taken on behalf of the appellant to our looking at it, because it only gave more details of the points already available to the AIT). By mid-1998 there was a backlog of over 50,000 asylum applications, and the annual cost of supporting asylum seekers was around £400m. The family amnesty policy was part of a drive to cut down the cost, to reduce the administrative burden, and generally to increase the efficiency of the system. The cost of support was one significant factor, but there were others.

26. First, although it is only necessary for the parent or parents in an asylum seeking family to be granted asylum to enable the whole family to remain, it is quite possible for each child of the family to make a separate asylum application. If a parent was refused asylum, then it was not uncommon for a child to make an application, and, in that event, no member of the family would be removed until the child's application was finally disposed of. The consequences in terms of time and expense are self-evident, particularly as such applications were apparently often made "on the brink of removal". (This problem has now been addressed by so-called "one-stop approach to appeals", but that could not have been safely applied to families already in this country).

27. Secondly, the practice is and has been (quite understandably) to remove all the members of the family unit at the same time, but there are, for a number of fairly obvious reasons, often difficulties in getting all members of a family together, especially if they know that it is for the purpose of removing them.

28. Thirdly, the view was taken by the Home Office that families who had been settled in this country for some years "would have started to develop ties with the community, and the children were likely to have made friends and to be settled in schools".

29. We were also told that the Home Office had estimated that about 15,000 families would qualify under the policy, and that "the savings could amount to £15,000,000 for every 1,000 families". The evidence also indicated that it was not intended that the policy would "identify all those in the backlog who had a compassionate case for leave to remain in the United Kingdom" and that it therefore did not "preclude the exercise of discretion, on the merits, in any other case with compassionate factors." The evidence also showed that there had been a significant number of asylum claims from unaccompanied minors. For instance, in 2004, there were just under 3,000 such claims, representing about 9% of the total asylum claims."

12. There were, therefore, practical and economic reasons for the policy but social considerations also played a part. The practical and economic reasons included the sizeable backlog of asylum applications and the significant annual cost of supporting asylum seekers, the time and expense of dealing with asylum applications from family members and the difficulty of getting all members of a family together ready for removal. On the social side, the Home Office was recognising the situation of families who had been settled in this country for some years and would have started to develop ties with the community with the children likely to have made friends and to be settled in schools.
13. Mr Southey for the claimant submits that a policy such as this must be formulated so that it operates consistently, treating like cases alike. That proposition is not contentious as the Secretary of State himself recognised when he extended this policy in August 2004 "to remove a number of anomalies, identified during the exercise itself and in the course of ongoing consultation" with MPs and NGOs, as a letter from a Home Office Minister, Mr Browne, to all MPs revealed.
14. Mr Southey's argument is that this policy is irrational because it includes some individuals/families and excludes others, including the claimant, without there being a proper rationale for the differentiation. His focus is the situation of families with children who had become young adults by the time the policy was announced. The claimant in this case had a son who was 18 ¾ on 2 October 2000 and 21 ¾ when the policy was announced in October 2003. Compare her with a notional claimant, Ms A, who is a parent with a child born on 3 October 1982 and accordingly just under 18 on 2 October 2000 and 21 and a few weeks when the policy was announced but whose situation is otherwise identical to the claimant's. Ms A would be entitled to leave under the policy but this claimant would not and yet both sons were over 21 at the time the policy was announced. Mr Southey argues that there is no rational justification for that difference in treatment. It is not necessary for the efficient working of the policy or of immigration control generally and it excludes some people who have stronger cases for leave than some of the applicants who fall within the policy.
15. In developing his submission, Mr Southey focussed on what he called the "prior cut-off date". He accepted that it was inevitable that a policy such as this would be limited in that people would not be able to qualify after a particular date. Under this policy, an applicant had to have claimed asylum before 2 October 2000 for instance so an applicant who applied on 3 October 2000 would not qualify. Similarly, a family which had their first baby in November 2004 would not qualify as they would not have had a dependant child at the relevant time. These qualifications were unobjectionable but, in Mr Southey's submission, a policy which excludes people who "met the requirements too early" is unusual and significantly more difficult to justify.
16. To illustrate his point, Mr Southey compared the case of this claimant who falls outside the policy with that of a notional claimant (Ms B) who falls within it.

	Ms F	Notional claimant Ms B
Date of birth of son	31 December 1981	25 October 1985
Date of mother's arrival in UK and asylum claim	Arrived May 1996 and claimed asylum 1999	Arrived and claimed asylum 1 October 2000
Date of son's arrival in UK	With mother in May 1996	Joined mother 23 October 2003
Time spent in UK by mother prior to application under policy in November 2005	9½ years	5 years
Time spent in UK by son prior to mother's application in November 2005	9½ years	2 years
Time spent in UK by son as a minor	May 1996 - Dec 1999 3½ years	23 Oct 2003 – 25 Oct 2003 2 days
Age of son at time of application	23	20

17. Ms B spent significantly less time in the UK than the claimant in this case, the family lived together in this country for significantly less time and the son's period here as a minor is nearly non-existent whereas the claimant's son spent a significant time here as a child and is therefore likely to have built up considerably more community ties. Mr Southey's example possibly becomes even stronger if one reverts to the notional Ms A whose son was born on 3 October 1982. He would enable Ms A to qualify because he would be just under 18 on 2 October 2000 and, like the claimant's son, he would be 23 at the time application was made under the policy.
18. In terms of the social objectives of the policy which aimed to accommodate families with children who had settled here and formed ties over time, it is irrational, Mr Southey argues, to construct a policy which excludes a claimant who has much longer links with this country and whose child has spent so much more time here as a minor than those who are included. Given that some families with young adults are included, the fact that the son reached 18 before 2 October 2000 is not a valid differentiation. There is no proper evidence, he submits, that the extension of the policy to include applicants like the claimant would open the floodgates to new applicants. No statistics about this have been produced by the defendant in support of the assertion of their witness, Robin Titchener, that it would represent "a very significant extension of the terms of the policy". Furthermore, the Secretary of State does not appear to have been of the view when the policy was announced that there would be a significant group of asylum seeking families who fell outside its terms given that the press release (quoted at paragraph 23 of AL (Serbia) v SSHD) said that it was believed that the vast majority of families who had applied for asylum before October 2000 would qualify for leave to remain under the terms of the policy.
19. In terms of the practical and economic objectives of the policy, Mr Southey points out there is no difference in the costs and other difficulties associated with the claims of those families with young adults who fall within the policy and those who do not. The costs of removing the unaccompanied minors in AL were less because they were not part of a family but there is not that justification for differentiating against the claimant.
20. Miss Giovannetti for the Secretary of State submits that the criteria in the policy do not begin to approach the irrational.
21. She invites attention to AL (Serbia) v SSHD where Lord Justice Neuberger recognised the inevitable shortcomings of policies of this type and of this policy in particular, saying:

"35. Thirdly, while the policy can undoubtedly operate as something of a blunt instrument, it appears to me inevitable that any policy of this type will produce anomalies. Unless the policy had given every asylum-seeker in this country in October 2000 the right to remain, it was necessary to limit its scope. Limiting its scope to families is, at least on the face of it, understandable for the reasons already discussed. Decisions, in such a context, as to cut-off dates, what precisely constitutes a family unit, and as at what date someone has to show he is a member of the unit, are not, of course, wholly immune from judicial scrutiny. However, because personal circumstances are almost infinitely various, it would have been impossible to identify qualifications which produced no perceived anomalies. Particularly if the qualifications were to be (as they are) few and simple, which is plainly a desirable feature.

36. As was accepted on behalf of the Secretary of State, the policy "was not predicated on the view that, by definition, each individual falling within [its] terms would have a stronger … case for the grant of leave to remain than any individual falling outside [its] terms". I should add that it cannot be seriously (and has not been) suggested that it was inappropriate for the Executive to introduce a policy of this type, particularly in the circumstances described in the evidence.

Fourthly, it seems to me that this is an area where the Executive (and, indeed, the Legislature) should be accorded a relatively wide margin of discretion (or appreciation). At first sight, this might seem surprising, as asylum is an area of law where, for obvious reasons, the courts have had to become relatively closely involved following the introduction of the Human Rights Act 1998. However, the policy with which this case is concerned gives a concession of a right to remain to those who, at least probably, would have no ECHR (or other) basis for resisting removal from this country. Further, the policy was introduced, as explained above, for good and understandable administrative and economic reasons, and its effect appears to comply with its aim as encapsulated in those reasons.

38. Fifthly, and turning to look at matters more from the perspective of the appellant, there is no question of the policy having been directed against people such as him. The policy was not fashioned so as to exclude persons who came to this country as unaccompanied minors, had (unsuccessfully) applied for asylum before October 2000 but were granted leave to remain until 18, and who, on reaching 18 had no dependants. I accept that the effect of the policy is not to benefit them, while it does benefit those who came as children of a person who had (unsuccessfully) applied for asylum before October 2000, provided that they were still members of that person's family unit in October 2003. However, the policy was, as I have explained, something of a blunt instrument – and inevitably so. Other groups were not included in the concession. For instance, any adults on their own who applied for asylum before October 2000 and had no dependants in a family unit in October 2000 or October 2003; any families who did not apply for asylum until after 2 October 2000; any dependants of someone who had the benefit of the policy who were not part of his family unit in October 2003."

22. As Miss Giovannetti submits and Mr Southey accepts, the mere fact that a policy produces anomalies does not render it irrational. She argues that, as the Court of Appeal accepted in AL, it would have been impossible to have drafted a policy without anomalies. Nobody suggests that it was therefore inappropriate for the Secretary of State to have any policy at all and this policy is, she submits, "a reasonable means of achieving the desired objectives" which have been approved as good and understandable in AL.
23. She submits, and I accept, that a valid consideration in drafting a policy of this type is that it should be simple and clear so that it can be applied without difficulty. It was intended to address the backlog of asylum cases and it would have been ineffective in doing so if it had, itself, been so complex that it bred uncertainty about its application and attracted its own body of new representations and litigation. Whilst an objective of the policy had to be to attempt to catch all those in a similar situation, that could not be the only objective of it. Certainty, administrative effectiveness and cost saving with regard to some of the most expensive asylum cases were also valid objectives. Indeed, the weight that attached to the practical and economic reasons can be seen from AL itself in which the court accepted that much of the social reasoning applied equally to people such as AL but the valid practical and economic reasons for focussing on families defeated AL's Article 14 challenge to the policy.
24. The claimant has no pending Article 8 claim nor any application for judicial review directly relating to an Article 8 decision. Mr Southey nevertheless sought to improve his argument in relation to the irrationality of the policy by an allusion to Article 8. His submission was two-fold. Firstly he argued that the fact that Article 8 rights may be involved for family applicants meant that the maker of a policy like this had to be particularly careful to ensure that there was consistency of treatment for all potential beneficiaries of the policy. Secondly, he argued that the policy as drafted inherently creates problems with regard to Article 8 which a rational policy should not do. At its highest, his argument was that by not including within its terms someone like the claimant who I think he would say had a compelling Article 8 claim, the policy led necessarily to violations of Article 8. He also argued that the policy created problems in relation to proportionality. He submitted that the policy amounted to a concession by the Secretary of State that it was not proportionate to interfere with the family or private life of those who came within the policy terms and it was inconsistent and irrational of him not to have given that concession with regard to others such as this claimant whose circumstances would actually make the proportionality hurdle more difficult to surmount.
25. In my judgment, none of the matters identified by Mr Southey make the policy irrational. The flaw in his case, as I see it, is that he seeks to examine the policy in isolation from the other rights of a claimant in the position of this claimant. The policy is not intended to be a comprehensive charter of rights but a concessionary policy operating within the wider system of immigration law. It is clear from his analysis that the claimant can, indeed, be said to have a stronger claim to the grant of leave than some of those who are within the policy. However, the policy was not intended to identify all those in the backlog who had a compassionate case to remain, nor was it predicated on the aim that each individual falling within it would have a stronger case for leave than any individual outside its terms. It properly had other objectives than just meeting a compassionate need and the Executive had to be accorded a relatively wide margin of discretion in drafting it. Any criteria were bound to produce anomalies. Had the policy terms excluded the claimant and left her with no means to advance her claim, she may have had a much more persuasive argument that it was irrational. In reality, however, she has or has had other avenues open to her. The most recent redrafting of the policy expressly articulates that consideration will be given to exercising the discretion to grant indefinite leave to remain where it does not fall to be granted under the terms of the policy, albeit that the indication is given that such discretion will be exercised only in the most exceptional compassionate cases. In addition, Miss Giovannetti accepted that the claimant would have a right to advance a fresh claim under Article 8 based on her current circumstances if they met the criteria in paragraph 353 of the Immigration Rules.
26. If there is anything in Mr Southey's argument that the policy amounts to a concession by the Secretary of State about proportionality, and I am not sure whether there really is, given that there were a number of objectives which the policy sought to serve, some of them the government's own objectives of savings in costs and in the administrative burden of processing the backlog of asylum claims, it is in advancing her Article 8 claim that the claimant can draw attention to that "concession" and invite the Secretary of State to take the view that it could not be proportionate to interfere with her private/family life when her circumstances are more compelling than those of families covered by his concession. She would no doubt identify, in her representations (whether in advancing an Article 8 claim or in seeking discretionary leave), the social reasons behind the policy in order to persuade the decision maker of particular points of significance in relation to which she had a strong case.
27. However, all that is before me is the claimant's judicial review challenge to the rationality of the policy. That challenge fails and I dismiss her application for relief.
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