QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham B4 6DS
B e f o r e :
| RUKSANA HASSAN & OTHERS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Vinesh Mandalia (instructed by Treasury Solicitors) for the Defendant
Hearing date: 29/01/2013
Crown Copyright ©
MR JUSTICE HADDON-CAVE:
Arrival in 2000
Contact in 2007
"We further submit that our client's three children have been in the UK for over 7 years the 7 years Children's Policy of the Home Office applies to our clients."
Policy DP5/96 withdrawn on 9th December 2008
"As our previous representations indicate that the above family benefits from 7 years concessionary period for families under the age of 18."
The Decision letter of 11th March 2011
THE LEGISLATION AND POLICY
"3.— General provisions for regulation and control.
(1) Except as otherwise provided by or under this Act, where a person is not [a British citizen]
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with [ the provisions of, or made under,] this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions ……"
"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE
The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 10 years or more continuous residence.
Whilst it is important that each case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception.
When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits."
"The United Kingdom Border Agency is withdrawing DP5/96, 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 case workers when evaluating whether removal of their parents is 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 DP5/96 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."
"From 09 December 2008 the discretionary enforcement Policy DP5/96 (also known as the Seven Year Child Concession) is formally withdrawn. All cases involving families with dependent children with long residence will now be considered under the Immigration Rules and Article 8 of the [ECHR] pursuant to the Human Rights Act 1998.
There are likely to be existing cases were DP5/96 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 DP5/96 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 DP5/96;
• enforcement cases where UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 9 December 2008. **
**Examples of such circumstances are where a case worker has already considered DP5/96 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 in that case. The same factors contained within the withdrawn Policy will still continue to apply when considering factors under DP5/96."
(1) First, whether the Claimants fall within the Transitional Provisions of Policy DP5/96.
(2) Second, whether the correspondence between the Claimants and the SSHD in 2007 and 2008 gave rise to a legitimate expectation that the SSHD would consider proceeding with, or initiating, enforcement action against the Claimant within a reasonable period of time.
FIRST ISSUE: TRANSITIONAL PROVISIONS
"• where UKBA have acknowledged in writing that they have received an application which relies on DP5/96;
• enforcement cases where UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 9 December 2008."
(1) Prior to withdrawal of the policy on 9th December 2008 did the UKBA acknowledge in writing that it had received an application from the Claimants which relied on Policy DP5/96?
"Thank you for your letter dated 06/06/07, regarding the above-named asylum claim.
I have checked our system and we have no record of your clients and her family have ever made a claim for asylum.
Before your client can claim asylum she must present herself and her dependents at her local Asylum Screening Unit at one of the address[es] below…"
(2) Was the Claimant's case an 'enforcement case' in which the UKBA had initiated the process of considering Policy DP5/96 prior to its withdrawal on 9th December 2008?
SECOND ISSUE: LEGITIMATE EXPECTATION
The principles governing legitimate expectation
"Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so….[This is] a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public."
"The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street."
Correspondence pre-December 2008
Prescribed form issue