England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2010

His Honour Judge Bidder QC :

1. Listed before me are three applications for judicial review of decisions of the defendant to refuse leave to remain to each of the claimants and their families. The three applications are listed together because they raise the same issue as to whether, when considering whether to grant leave, the defendant should have afforded the claimants the benefit of the Secretary of State's seven years children concession policy, known as DP 5/96. That concessionary policy was announced by the Under-Secretary for the Home Department , Mr. O'Brien on 24 February 1999:

"For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under 18 living with them who spent 10 years or more in this country, save in very exceptional circumstances.

We have concluded that 10 years is too long a period. Children were being in this country for several years would be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children and families will be living in the United Kingdom continuously for seven or more years. In most cases the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However each case will continue to be considered on its individual merits."

2. After the initial statement setting out the policy the Secretary of State issued a policy modification statement which encapsulates the policy:

"Deportation in cases where there are children with long residence: Policy Modification announced by the Under-Secretary for the Home Department Mr O'Brien on 24 February 1999.

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 had 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 normally proceed with enforcement action in cases where a child was born here and has lived 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.

However there may be circumstances in which it is considered that the 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 judgement 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.

It is important that all reasons are given making clear that each case is considered on its individual merits."

3. On 9 December 2008 the then Immigration Minister announced the withdrawal of the concessionary policy as of that date. Mr. Woolas said:

"The United Kingdom border agency is withdrawing DP 5/96, a concession which has also been referred to as the seven-year child concession, as of 9 December 2008. The concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived 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. The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by caseworkers when evaluating whether removal of their parents as appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules. The withdrawal of DP 5/96 and replacing it with consideration under the immigration rules and article 8 of the ECHR will ensure a fairer more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the immigration rules and remain in the UK lawfully."

4. Following withdrawal of the policy, the Secretary of State subsequently published transitional arrangements which read as follows:

"Transitional arrangements

There are likely to be existing cases were DP 5/96 will continue to apply despite its withdrawal. These types of cases are:

current appeal cases where the policy has already been applied (before its withdrawal) and rejected by UKBA and the appeal is either still pending with the Asylum and Immigration Tribunal (AIT) or has been allowed;

appeal cases where the policy was not applied by UKBA (before its withdrawal) and where the AIT direct UKBA to consider DP 5/96 in the context of an allowed appeal;

cases where UKBA are challenging an allowed appeal by either the AIT or an upper Court;

where UKBA have acknowledged in writing that they have received an application which relies on DP 5/96;

enforcement cases where UKBA have initiated the process of considering DP 5/96 prior to its withdrawal on 9 December 2008.

**Examples of such circumstances of where a case worker has already considered DP 5/96 prior to its withdrawal or has written to the individual or the representative requesting further information/evidence in relation to the child's length of residence.

Any information/evidence requested will need to be submitted within 28 days of the date of request, for the policy to continue to be applied to that case. The same factors contained within the withdrawn policy will still continue to apply when considering cases under DP 5/96."

5. In the cases of Mr Rahman and Mrs Abbasi and their families, the defendant had not, prior to withdrawal of the policy, initiated enforcement proceedings against them or considered whether enforcement action should proceed. Mr Rahman and his family had completed their seven years in the United Kingdom on 17 September 2010, about three months prior to the withdrawal of the policy. Mrs Abbasi and her children completed their seven years on 4 September 2002, about nine months after the withdrawal.
6. The defendant, of its own motion, identified, shortly before the service of the detailed Grounds, that Ms. Adams had in fact been the subject of enforcement action prior to the withdrawal of that policy. Accordingly the defendant accepts that under the transitional provisions relating to DP 5/96 Ms Adams is entitled to consideration of her case under the terms of the policy. It was not possible, however, for her case to be disposed of by consent, as Mr Malik, learned counsel for the claimants, contended that her case should be considered in any event by the court. Both counsel considered that the issue of costs in Ms Adams case should properly be reserved until the end of the case. I agree with the views of counsel on the issue of costs although I am puzzled as to why I am invited to consider Ms Adams case in more detail, having regard to the concession.
7. The factual backgrounds and chronologies are not in dispute and can be stated briefly.
8. Mr Rahman is a citizen of Bangladesh and was born on 31 December 1953. He has three dependents, namely his wife Jahada Siddiqua, who was born on 15 April 1967, his son Mahfuz Ahmed Mahbub, born on 22 July 1988 and his daughter Tasneem, born on 28 September 1992, all of whom are Bangladeshi citizens.
9. He and his dependents arrived in the UK on 17 September 2001 on a visitor's visa which expired on 16 February 2002. He and his family continued to reside in the United Kingdom. On 20 July 2000 he together with his dependents applied for leave to remain in the United Kingdom. His application was essentially based on article 8 and the children's ties with United Kingdom. The application was refused by the Secretary of State on 12 February 2010 which decision is under challenge in these proceedings. Permission was granted on the papers by His Honour Judge Thornton QC on 19 April 2010.
10. Mrs Abbasi is a Pakistan citizen born on 11 January 1970. She has four dependents, all of whom are Pakistani citizens, namely, her husband, Mohammed Safeer, born on 16 December 1961, her daughters Mashal and Minhaal, born on 9 February 1993 and 4 September 1984 respectively and her son Bilal, born on 24 October 1989. She and her dependents arrived in the United Kingdom on 4 September 2002 on a visitor's visa which expired on 4 March 2007 following which they continued to reside in the United Kingdom.
11. On 14 March 2009, she and her dependents made an application for leave to remain in the United Kingdom based on article 8 and on the children's ties with United Kingdom. The application was refused by the Secretary of State on 15 September 2009 which decision is under challenge in these proceedings. Langstaff J granted permission on the papers on 8 February 2010.
12. Mrs Adams is a citizen of Ghana and was born on 28 February 1999. Her dependents, all being citizens of Ghana, born in the United Kingdom, are her son Tarick Zomah, born 15/5/2001, daughter Iman Zomah, born 27/5/2004 and son Inam Zomah, born 15/5/2008.
13. She arrived in the United Kingdom in December 1999 on a visitor's visa permitting her to stay for up to 6 months. However, at the end of that time she continued to reside in the United Kingdom. In 2003 she married a citizen of Portugal and on 16 June 2003 was granted a residence permit for five years on the basis of her marriage. That residence permit was revoked by the Secretary of State on 29 July 2004. She appealed to the tribunal against the revocation but her appeal was dismissed on 4 May 2005.
14. On 15 November 2008 she was arrested and served with IS151A. On 23 December 2009 she and her dependents applied for leave to remain in the United Kingdom, an application based on article 8 and the children's ties with United Kingdom. The application was rejected as invalid on 23 April 2009. She resubmitted the application on 2 May 2009 but it was refused on 31 October 2009 which decision is under challenge in these proceedings. On 26 June 2010 His Honour Judge Thornton QC refused permission on the papers but Mr Elvin QC sitting as a Deputy High Court Judge granted permission at the renewal hearing.
15. On 5 October 2010 the defendant accepted in writing that the seven years children concession policy "ought to have been considered in her decision dated 31 October 2009 even though the claimant made their application after that policy was withdrawn". On that basis the defendant invited her to withdraw the judicial review application with no order as the costs. The claimant, on 13 October 2010 replied to the Secretary of State and invited her to agree for the judicial review application to be stayed for a period of 12 weeks to enable the Secretary of State to reconsider the matter. The defendant rejected that offer and proposed that the matter be determined by the court at the substantive hearing. The claimant wishes the matter to be determined by the court on the merits.
16. The grounds of the conjoined applications are fourfold.

i) that it was irrational or otherwise unlawful for the defendant to withdraw the policy in a way that prevented those already in the United Kingdom who had built up at least seven years residence prior to the policy being withdrawn from benefiting from it;

ii) that the defendant was obliged to consider paragraph 395C of the Immigration Rules in determining an application for leave to remain made by a family who has built up at least seven years residence in the United Kingdom;

iii) that the withdrawn policy should remain a weighty and relevant factor in the assessment of cases of this nature and that, having regard to the terms of the withdrawn policy and the two ministerial statements quoted above, the only rational response to an application made by a family who would have qualified under the withdrawn policy is grant of leave either under paragraph 395C (leave outside the rule) or under article 8 (discretionary leave);

iv) that the fact that the article 8 rights of those families who had built up at least seven years residence in the United Kingdom prior to the withdrawal of the policy (but have been refused leave after the withdrawal) are dealt with differently from those who were granted leave under the policy amounts to unlawful discrimination under article 14.

17. There is an issue as to whether the Claimants have permission to raise ground 4 and it is right that it does not appear in the original or any amended grounds. However, His Honour Judge Thornton QC, in giving permission in Mr. Rahman's case, did so because he considered it arguable that there was a breach of article 14 here. Having considered the matter, I judged it right to allow the Claimants to argue the ground and the hearing before me proceeded on the basis that I might give permission to raise that ground.
18. The power to remove persons from the UK is contained in section 10 of the Immigration and Asylum Act 1999:

"10 Removal of certain persons unlawfully in the United Kingdom

(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b) he uses deception in seeking (whether successfully or not) leave to remain; or

(c) directions . . . have been given for the removal, under this section, of a person . . . to whose family he belongs."

19. Paragraph 395C of the Immigration Rules sets out the procedure for section 10 removals:

"395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf.

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account."

20. Article 8 of the ECHR states:

"1 Everyone has the right to 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 is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

21. Finally, article 14 of the ECHR states:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

GROUND (i)

22. I accept (following the approach approved in NF (Ghana) v Secretary of State [2008] EWHC 906 Admin) that the presumption should be, in relation to families where 7 years residence of a child of a family is accrued under the policy, that it is only in exceptional cases that indefinite leave to remain will not be given. The Secretary of State will then go on to consider the extent to which any of or a balancing of all the factors mentioned in the 1999 policy modification statement makes the case an exceptional one.
23. The extent of the policy had been considered in R (Toziukaya) v SSHD [2006] EWHC 979 Admin and in that case the Secretary of State accepted that she was bound not only by the original DP 5/96 as amended to refer to 7 years as compared with the original 10, but also by the policy modification statement and by the Immigration Minister's parliamentary statement.
24. It is also clear that while the policy dealt with the enforcement of removal, the Secretary of State accepted that if under the policy, removal was not ordered discretionary indefinite leave to remain would be given both to the parent and the child.
25. On the face of it, having regard to the policy modification statement, the policy only applies to cases in which the defendant is considering whether enforcement action should proceed or be initiated against parents who have children and who have lengthy residence in the United Kingdom (see paragraph 1 of the policy modification statement).
26. However, in R (A) v SSHD [2008] EWHC Admin 2844, Mr. Howell QC, sitting as a deputy judge of the High Court, construed the policy as not being limited to cases where the Defendant was considering enforcement action.
27. In that case, the claimant had come to the UK when 3 years old with his mother but 2 years later his mother had returned to Nigeria leaving him with his aunt, with whom he had resided from 1997 to 2003 when an application was made on his behalf under DP 5/96. That was refused by the Secretary of State but the AIT allowed the appeal on article 8 grounds. The Secretary of State then reconsidered the claimant's case and granted limited leave to remain refusing to grant indefinite leave to remain.
28. The Secretary of State's policy in relation to a child who was not living with a parent was to consider the child's position under her policy on discretionary leave (outside the Immigration Rules). That discretionary leave was only to be granted if a case fell into one of a limited number of categories or if individual circumstances were so compelling that it was considered appropriate to grant some form of leave. Thus, a case where the removal of a person was incompatible with article 8 was one of the categories for the grant of discretionary leave, which should not in the first instance exceed 3 years and then, after review, if appropriate a further 3 years might be granted. After 6 years a person would normally become eligible to apply for ILR.
29. In practice, it appeared to Mr. Howell QC in A that in cases where DP 5/96 and the policy for discretionary leave on article 8 grounds applied and where an individual successfully appealed against a decision to remove him or her on the ground both that removal was incompatible with article 8 and that the Secretary of State had made some error regarding the applicability or application of DP 5/96, consideration would be given to whether DP 5/96 applies and ILR would be granted if it did.
30. It became common ground at the hearing that policy DP 5/96 did not apply to the claimant, (because he was not a child living with a parent), but that it was relevant to his application for ILR. The issue, accordingly, arose as to whether there was any justification for the difference in treatment of relevant children who were, and who were not, living with a parent who also required leave to remain in the UK. It was conceded by the Secretary of State that difference in treatment of children living with parents (who could receive ILR under DP 5/96) and those not living with a parent required justification if it was to be treated as compatible with article 14. Thus it was considered, in the view of Mr Howell QC rightly, that different treatment of a child, on the basis on the one hand, as to whether a child was living with a parent who also required leave to remain or whether the child was living with another relative who required leave, was one which was on the ground of "other status" within the ambit of article 14. The decision of Mr. Howell was that that decision could not be justified.
31. In the course of his judgment, Mr Howell QC considered the point that had initially been taken by the Claimant, when the Claimant was arguing that DP 5/69 was thought to apply to the Claimant, that the Secretary of State had been in error in concluding that DP 5/96 did not apply because removal action was not being taken against the Claimant and the policy related to cases where removal process was being taken or considered. His conclusion on that point is relied on very heavily by the Claimant but for the reasons I have at some length set out above, I consider that Mr Howell's conclusion on that issue was, strictly, unnecessary to his final conclusion in the case and was obiter. The reasons for his findings merit close consideration nonetheless:

"29. In my judgment the reason there given by the Secretary of State why "DP 5/96" was inapplicable was flawed. The point made in that letter was that, as the Claimant was not being removed, "DP 5/96" was inapplicable as it was an enforcement policy relating to removals. This reflects the argument put on behalf of the Secretary of State to Wilkie J in R (Sadowska) v the Secretary of State for the Home Department [2006] EWHC 797 (Admin) that "DP 5/96" applied only in the context of removals, not when a person sought leave to enter or remain. Wilkie J found it unnecessary to decide whether or not that argument was well founded, as he held that a decision as to what leave to remain should be granted following a successful appeal against a decision to remove an individual based on article 8 was a decision made in the context of removal and, therefore, that "DP 5/96" was applicable to it. The Secretary of State's decision in this case was likewise one taken in the context of removal, as it followed the Claimant's successful appeal based on Article 8 against a decision to remove him. In my judgment, if only for that reason, the reason given in the Secretary of State's letter dated February 13th 2007 for treating "DP 5/96" as being inapplicable to the Claimant was in error.

30. The Secretary of State's argument on this point is misconceived, however, on wider grounds. As formulated in published statements, "DP 5/96" is a policy concerned solely with whether a person should be re-moved. As formulated in those statements, it says nothing about what should happen if the presumption is applied in favour of not removing that person. If regard is limited to such published statements of policy, it may make sense to say that "DP 5/96" has no application if no removal is under consideration. But, once regard is had to the practice (which the Secretary of State accepts is part of her policy) to grant ILR to a person to whom the presumption applies, it makes no sense to regard "DP 5/96" as being concerned only with a decision whether to remove an individual and not with a decision whether to grant that individual leave to remain. As it was put succinctly in one letter from the Border and Immigration Agency which is before this Court, "DP 5/96 gives ILR outside the Rules". It can make no sense (when the circumstances are otherwise the same) to deny ILR to an individual because an individual has applied for it when the Secretary of State is not considering removing him but to grant it if the Secretary of State is considering removing him. In each case the individual concerned requires leave to be in this country and the question for the Secretary of State is whether or not to grant him ILR in accordance with policy "DP 5/96".

32. Mr. Malik, on behalf of the Claimant also contends that, though there was no statutory obligation on the part of the Secretary of State to consult those families who had completed seven years residence, the duty to invite representations was an aspect of procedural fairness in this case. He referred me to R (on the application of BAPIO Action Ltd. and another v Secretary of State for the Home Department and another [2007] Civ 1139 but I can see little in that case to support his argument.
33. First, the claimants in that case succeeded in their application for judicial review on a ground other than a failure to consult. It cannot be said in this case, moreover, that the duty to consult rises from any practice of consultation. Additionally, although it was argued in BAPIO that the common law required the state to consult those affected before changing a rule or policy to the detriment of an ascertained and limited class, it is difficult to argue in this case that a failure to consult those who have not been the subject of enforcement action, and thus fall into an un-ascertained class can be regarded as unfair. Additionally, as Mr Waite for the defendant points out, each of these applicants entered the UK representing to the Secretary of State that they would stay for only a limited period.
34. It is contended on behalf of the Secretary of State, relying on Rashid v SSHD [2005] EWCA 744, that there cannot be a legitimate expectation that the claimants should benefit from the withdrawal policy now notwithstanding its withdrawal because the claimants are unable to demonstrate that the refusal to allow them to benefit from the withdrawal policy gives rise to a degree of unfairness amounting to an abuse of power.
35. There is no doubt that these facts differ very substantially from those in Rashid in which there had been an unlawful failure to apply the relevant policy when it was still in existence. Indeed, in Rashid, there was an extraordinary failure to appreciate and apply that existing policy. The policy in question was not considered by the Secretary of State when asylum was refused and was not brought to the attention of the AIT on appeal. By the time the claimant discovered the existence of a policy it had ceased to exist. In the main judgement in that case, Lord Justice Pill said:

"[34] I accept Mr Tam's submission that this is not the typical case of legitimate expectation which usually arises in the circumstances he has described. It is, as the judge recognised, and Mr Rabinder Singh rightly submits, a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and will be applied uniformly. Serious errors of administration have resulted in conspicuous unfairness to the Claimant.

[35] Countervailing public interest has not been claimed (and indeed there is a public interest in those applying asylum policies being aware of the policies) save to stress the important point that the grant of refugee status depends on a current risk of persecution and is therefore taken on the basis of conditions currently prevailing in the country where the risk of persecution is alleged to exist (Adan).

[36] I agree with the judge's conclusion that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time and in relation to a country which at the time would have been expected to be in the forefront of the respondent's deliberations. I am very far from saying that administrative errors may often lead to a finding of conspicuous unfairness amounting to an abuse."

36. The position of Mr. Rahman and his family in this case, and even more significantly Mrs Abbasi and her family (who did not achieve 7 year residence until about 9 months after the policy was withdrawn) is very different from the position of the claimants in Rashid. They had, as I have indicated, resiled on their representation to the Secretary of State that they would leave the UK after their limited leave to remain had expired. Indeed in Mr. Rahman's case, as his statement at page 38 in the trial bundle makes clear, he came to the UK with every intention that he and his family would remain after the expiry of their visit visa.
37. However, although this present case is clearly distinguishable from A and while the passage from A that I have cited above is obiter, having regard to the clear practice of the Secretary of State to grant ILR when DP 5/96 was satisfied, which practice was part of the policy which the Secretary of State adopted in 7 year residence cases, I agree with Mr. Howell that it would be irrational for the Secretary of State to distinguish between persons who had the necessary period of residence but who were not the subject of enforcement proceedings and those with the necessary residence qualification, who were.
38. Thus, in my judgment, Mr. Rahman and his family, who completed their 7 years in the UK about 3 months prior to the withdrawal of the policy, would, had their claims been considered before the policy was withdrawn, have qualified for indefinite leave to remain. They had, in my judgment, something which might properly be described as akin to an accrued right, and not merely one not to be removed.
39. Although they had not sought to regularise their position in the UK until after the withdrawal of the policy, in my judgment, they fell within a class of persons who were then entitled to the benefit of the policy and the presumption was that ILR would be granted to them unless it was considered by the Secretary of State under the policy that there were particular circumstances in which it was considered that enforcement action was still appropriate, as detailed in the policy modification statement.
40. There is no indication here that Mr. Rahman or his family (nor indeed Mrs Adams and her family) were aware that they had accrued a right under the policy but neither were the claimants in Rashid aware of their rights. It may be relevant, when considering the issue of the fairness of the withdrawal of the policy, to consider whether or not a claimant was personally aware of the existence of the policy, but it is not an essential requirement.
41. This issue of whether personal knowledge of a representation contended to found a legitimate expectation is discussed at paragraph 12-037 to 039 of the current edition of De Smith's Judicial Review. The learned editors cite at 12-038 the dictum of Lord Hoffmann in R. v Secretary of State for the Home Department ex p. Zequiri [2002] UKHL 3 : "Kosovar refugees cannot be expected to check the small print" and continue:

"There is surely merit in encouraging good administration which requires decision-makers to bear the normal consequences of their representations"

42. Then, after referring to Rashid and the judgments both of Pill LJ and Dyson LJ in that case, the editors continue:

"Clearly there should be an expectation that public officials will implement their own policies, but the use of the term "expectation" in that context may not add anything to these general public law duties and indeed may dilute their essence. In any event …. there is an independent duty of consistent application of policies which is based on the principle of equal implementation of laws, non-discrimination and the lack of arbitrariness. Although in some cases lack of knowledge of an assurance or practice has defeated a legitimate expectation, it is surely right that reliance should not be a "necessary precondition" of a legitimate expectation "where statements are made to the public at large"."

43. The group to which Mr. Rahman and his family belonged had no warning of the Secretary of State's policy change. While I am not satisfied that any formal consultation or opportunity to make representations was necessary to secure procedural fairness I am satisfied that it was simply not fair to that group not even to have given a month's warning that the concession was to end. I have, therefore, on this first ground, come to the conclusion in the Rahman case that not to afford them the benefit of DP 5/96 when they had accrued the necessary 7 years residence prior to the withdrawal of the policy was so conspicuously unfair as to amount to an abuse of power.
44. The position is even more clear in Mrs Adams and her family's case where enforcement process had in fact begun. They were, under the clear terms of the policy, entitled to ILR unless consideration of their individual case revealed that leave should not be granted because of the factors set out in the policy statement.
45. However, Mrs. Abbasi and her children completed their 7 years about 9 months after the withdrawal of the policy and it is not argued that are able to rely on ground (i) of the claim.
46. Mr. Malik also supported ground (i) of the claim by reference to the transitional arrangements which were announced when the policy was withdrawn. He contends, and I agree, that the wording of those arrangements, referring to the "types of cases" in which it is likely that DP 5/96 will continue to apply despite its withdrawal, suggests that the list of types which follow is not meant to be exclusive but merely to exemplify. That was the conclusion reached by the Court of Appeal in AF (Jamaica) v SSHD [2009] EWCA Civ 240. Lord Justice Rix said at paragraph 21:

"Although the present type of case is not specifically mentioned in the transitional arrangements, understandably because we are not concerned at present with the Secretary of State's application of the policy, the transitional arrangements are not in any event intended to be a comprehensive statement of the continuing relevance of the policy in extant cases. This is demonstrated by the language of the transitional arrangements itself: "There are likely to be existing cases where DP 5/96 will continue to apply despite its withdrawal."

47. In Mr. Rahman's case it cannot be contended that the Secretary of State has simply not considered whether the transitional provisions apply. At page 58 of the trial bundle and paragraph 7 of the further decision letter, it is clear that she has and has concluded the transitional provisions do not apply. Mr. Waite, for the defendant, submits that the reference to "existing cases" in the first sentence of the transitional provisions means that the list of types of cases must be taken to mean cases in which DP 5/96 has arisen for consideration in some context. I doubt that that phrase was intended to narrow the list of potential transitional cases in that way but I am not persuaded that the Secretary of State was irrational in coming to the conclusion that the Rahman case did not fall within the transitional provisions. Thus I do not consider that this point substantially adds to Mr. Malik's submissions under ground (i).

Ground (ii)

48. In my judgment the simple answer to this ground is that the language of paragraph 395C requires the Secretary of State to take it into account before making a decision to remove and that decision has not yet been made nor has the process of making that decision been started.
49. In Mirza v SSHD [2010] EWHC 2002 the separateness of the decision to refuse leave to remain and that of removal was analysed and supported by Moses LJ sitting as a first instance judge of the Administrative Court. At paragraph 37 he stated:

"Thus consideration of the factors to which para 395C relates is a separate process from consideration of a person's right to remain. The obligation imposed by that paragraph concerns a discretionary decision following refusal of leave or a variation. Two features of the statutory scheme demonstrate the distinction between a decision whether to vary leave and the discretionary decision whether to issue removal directions. First, any appeal against a decision to issue removal directions, relying on 395C, is an appeal against that discretionary decision and not against a refusal of variation of leave. The discretionary decision to issue removal directions is a decision identified in s 82(2)(g). A refusal to vary leave to remain is a decision identified in s 82(2)(d). Both decisions may be appealed on grounds identified in s 84, but s 84(1)(f) would have no application to a refusal of variation."

50. While that case involved claimants who were lawfully in the UK I respectfully agree with the reasoning behind the decision of Wyn Williams J. in R (on the application of Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin) in which case there was again, a separation of the decision to refuse leave to remain and to remove, but in that case, unlike Mirza, the claimant was unlawfully present. While Wyn Williams J. was not, it seems to me, laying down a rule that such separation would always be justified, I see no sensible distinction between that case and this and I do not consider that it would be unfair or irrational for the Secretary of State not to consider paragraph 395C until the consideration of removal is commenced.

Ground (iii)

51. In my judgment, the reasoning behind the decisions in Mirza and Daley-Murdock is equally an answer to this ground.
52. However, in deference to the wider arguments raised under this ground, if it is accepted that the withdrawn policy, or to be more accurate, the expressed justifications for the withdrawn policy, will be relevant to an assessment of cases of this nature under paragraph 395C or under Article 8, or even very relevant, I am simply unable to accept the proposition advanced by Mr. Malik that the only rational response to an application made by a family who would have qualified under the withdrawn policy is grant of leave. Undoubtedly the list of factors under 395C is not exclusive and there is a specific reference to paragraphs 365 to 368, paragraph 367 being particularly important in this case.
53. It is of course right that "very weighty reasons" are needed to justify separating a child from a community in which he or she had grown up and lived for most of his or her life, as the Upper Tribunal recognised at paragraphs 26 to 28 of LD Zimbabwe [2010] UKUT 278 (IAC) and the UN Convention on the Rights of the Child 1989 article 3 makes the best interests of the child a primary consideration. Those interests, however, are not the paramount consideration and it is premature to say that any decision by the Secretary of State under 395C or on article 8 must necessarily give precedence to the best interests of the children involved in these case.
54. Mr. Waite is correct to point out that the breach of assurances that each of the parents involved in these applications gave on entry to the UK, their failure to regularise their position in the time they have remained in the UK and the other factors which the Secretary of State set out at paragraph 15 of her second decision letter in the Rahman case (page 59 of the bundle) are also important factors in what is in one case an exercise in discretion and in the other a proportionality assessment.
55. In the case of R (on the application of TS) v SSHD and Northamptonshire County Council [2010] EWHC 2614 Admin, Wyn Williams J. considered the importance of the best interests of the child and of the obligation imposed on the Secretary of State by section 55 of the Borders, Citizenship and Immigration Act 2009. He took the view that the duty to have regard the need to safeguard and promote the welfare of a child when discharging a function which was both an immigration and asylum function arose not just in relation to the process of removal but also in relation to whether or not removal should be directed. That stage of consideration has not yet been reached but when one looks at the second decision letter in the Rahman case at page 57, although the defendant does not explicitly say that she is treating the best interests of the children as a primary consideration (and section 55 was not argued in the representations), it is very clear from the analysis of the impact of removal on the children in the letter that she has done so. Equally there has been concentration in the Abbasi case on the critical impact that removal of the children from the UK would have (pages 123 to 124).
56. My rejection of grounds (ii) and (iii) means (as was conceded by Mr. Malik) that I must dismiss the application of Mrs Abbasi.

Ground (iv)

57. While I can understand why, in A the different treatment of a child, on the basis on the one hand, as to whether he or she was living with a parent who also required leave to remain or whether the child was living with another relative who required leave, was one which was on the ground of "other status" within the ambit of article 14, I am unable to accept that a different treatment of persons because they were or were not considered under the concession policy depending on whether they were facing enforcement action or not can involve discrimination on the grounds of "other status" under article 14 having regard to the list of specified characteristic in the article on the basis of which discrimination is unlawful.
58. In any event, even if those distinctions could involve discrimination within article 14 the statement of policy by the Minister contained ample justification for that discrimination. Mr. Malik, in my judgment correctly, did not strongly argue ground (iv).
59. It follows that, in relation to Mrs Abbasi and her family, I dismiss their applications for judicial review but, in relation to Mr. Rahman and Ms Adams and their respective families, I quash the relevant decisions of the Defendant and order that their applications for leave to remain shall be reconsidered by the Secretary of State under policy DP 5/96.