Neutral Citation Number: 2013 EWHC 582 (Admin)
Case No: CO/5534/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS

Date: 18/03/13 

Before:

MR JUSTICE HADDON-CAVE
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Between:

	RUKSANA HASSAN & OTHERS	Claimant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	

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Mr R. De Mello and Tony Muman (instructed by J.M. Wilson Solicitors for the Claimant
Vinesh Mandalia (instructed by Treasury Solicitors) for the Defendant

Hearing date: 29/01/2013
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JUDGMENT
MR JUSTICE HADDON-CAVE: 

INTRODUCTION

1.	This case raises issues as to the application of the transitional provisions of Policy DP5/96 relating to immigrant families with children with more than 7 years residency in the UK and the correct scope of the doctrine of legitimate expectation.  

2.	By these Judicial Review proceedings, the Claimants Ruksana Hassan and her four children, Imran Hassan, Fatima Hassan, Aiza Hassan and Eeman Hassan challenge the decision of the Secretary of State for the Home Department (“SSHD”) made on 11th March 2011 refusing to grant the Claimants indefinite leave to remain (“ILR”) in the UK and only granting the Claimants three years discretionary leave to remain (“DLR”).  The SSHD rejected the Claimants claim to be entitled to rely on Policy DP5/96.

THE FACTS

Arrival in 2000

3.	The Claimants are Pakistani nationals.  The First Claimant, Ruksana Hassan, arrived in the UK as a visitor on 16th April 2000. She was accompanied by her husband, Iftikhar Ahmed (also Pakistani), and their then three children namely, Imran, Hassan, and Aiza (the Second, Third and Fourth Claimants). Their fourth child, Eeman (the Fifth Claimant), was born in the UK on 19th November 2002. The Claimants overstayed in the UK illegally.

Contact in 2007

4.	7 years and 2 months after first arrival,  the First Claimant caused a letter to be sent by the Immigration Advisory Service (“IAS”) to the SSHD on 6th June 2007 making an application on behalf of all the Claimants for  leave to remain (“LTR”) to the SSHD in the UK “on the basis of Article 8 of the [ECHR]”. The letter stated: “As you are well aware an application made under this provision does not require any particular form nor the payment of fees”. The letter explained that the First Claimant’s husband, Iftikhar Ahmed, had claimed asylum shortly after arrival for himself and his dependents, but he had left his family two months previously and it was not know what happened to the asylum application. The penultimate paragraph of this lengthy letter stated as follows:

“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.”

5.	On 17th July 2007, the SSHD replied to IAS “regarding the above-named asylum claim” stating that there was no record of the First Claimant’s family having made a claim for asylum and that before they could claim asylum they must present themselves at a local Asylum Screening Unit. The Home Office reference “H1180361” appeared at the top left hand side of the letter. It is clear from internal government records that the Home Office File Number “H1180361” was ascribed to the matter on 14th June 2007.

6.	On 26th September 2007, the IAS wrote to the SSHD explaining that in their letter of 6th June 2007 the Claimants had made an immigration application and not a claim for asylum.  The IAS stated that the application was made on three basis: Article 8, the Concessionary Policy and “on the basis of the 7 years children’s Policy of the Home Office”. There was no response by the SSHD to this letter.

7.	On 13th March 2008, the SSHD received a letter from Messrs Marks & Marks Solicitors to the Defendant stating they were now instructed on behalf of the Claimants who had previously made an application for ILR. The letter stated that in view of the Claimants’ residence in the UK for over 7 years that the case “therefore falls under the rules of DP/5/99”. There was no response by the SSHD to this letter.

8.	On 9th October 2008, the First Claimant herself wrote to the SSHD regarding her application for ILR. She stated that she recognised that the Home Office was “very busy” but asked for the facts which she had drawn to their notice to be considered and something done “urgently”. There was no response by the SSHD to this letter.

9.	On 10th October 2008, Messrs Marks & Marks wrote to the SSHD requesting an update as to the progress of matters. The letter referred again to the “7 year concessionary Policy” and asked for “an early decision” on the matter. There was no response by the SSHD to this letter. 

10.	On 14th October 2008, Messrs Marks & Marks wrote to the SSHD correcting the Claimants’ Home Office Reference referred to in the letter dated 10th October 2008. There was no response by the SSHD to this letter.

Policy DP5/96 withdrawn on 9th December 2008

11.	On 9th December 2008, Policy DP5/96 was withdrawn with immediate effect and transitional provisions put in place (see further below).

12.	On 11th March 2009, Messrs Marks & Marks wrote to the SSHD enclosing a Form SET (O) Application on behalf of the five Claimants requesting ILR or DLR, together with the appropriate fee. The covering letter referred to Articles 3, 5 and 8 of the ECHR and also stated as follows:

“As our previous representations indicate that the above family benefits from 7 years concessionary period for families under the age of 18.”

13.	There was a response from the SSHD to this letter. On 17th March 2009, the SSHD wrote to Messrs Marks & Marks Solicitors acknowledging receipt of the application made by the Claimants on Form SET (O). On 4th June 2009, the SSHD again wrote confirming receipt of the Claimants’ application and stating the “application is valid”.

14.	On 21th December 2010, the SSHD wrote to Messrs Marks & Marks requesting further information concerning the identity of the Claimants and their circumstances in the UK.

The Decision letter of 11th March 2011

15.	On 11th March 2011, the SSHD wrote to Messrs Marks & Marks refusing the Claimants’ application for ILR under the ‘long residency rules’ and only granting the Claimants three years DLR (i.e. until 11th March 2014). This is the Decision letter which is challenged by these proceedings.

16.	On 14th June 2011, the Claimants issued the present proceedings for judicial review.
THE LEGISLATION AND POLICY

17.	The general power of the SSHD to regulate and control immigration in the UK is derived from s. 3 Immigration Act 1971:

“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 ……”

Policy DP5/96

18.	In March 1996, the SSHD introduced a policy concerning deportation cases where there were immigrant families with children with long residence. The Policy was known as “DP5/96” (“Policy DP5/96”).  In its original form, Policy DP5/96 was concerned with cases of residence by immigrant children of ten years or more and gave rise to no presumption that leave would be granted.  It was worded as follows: 

“DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE
Introduction
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.
 
Policy
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.”
 
19.	On 2nd April 2007, Policy DP5/96 was revised so as to reduce the required residence period from 10 years to 7 years and to introduce a presumption that leave to remain would be granted to such children, save in exceptional circumstances (see the observations of the Court of the Appeal in NF(Ghana) v SSHD [2008] EWHC 906 (Admin)). 
  
20.	On 9th December 2008, the then Minister of State at the Home Office, Mr Woolas MP, announced that Policy DP5/96 was being withdrawn with immediate effect. It was (belatedly) realised that Policy DP5/96 introduced perverse incentives and was open to abuse. The full Hansard report of the Ministerial his statement reads as follows:   

“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.”

21.	At the same time, the Home Office published transitional provisions to accompany the withdrawal of Policy DP5/96 (“the Transitional Provisions”) in the following terms:    
     
“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.

Transitional arrangements 

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.”

AUTHORITIES

22.	In Rahman v. SSHD [2011] EWCA Civ 814, the Court of Appeal held that the Secretary of State had acted lawfully in withdrawing Policy DP5/96 and in determining the transitional provisions that would apply (upholding the Court of Appeal’s reversal of the decision of HHJ Bidder QC in Abbassi v. SSHD [2010] EWHC 2894 (Admin)). The Court of Appeal held that: (i) Policy DP5/96 was an invitation to parents with immigration status not to seek to regularise their status, but to ‘lie low’ until their children had been in the UK for 7 years; (ii) Policy DP5/96 could operate as an inducement to enter the country fraudulently, with limited leave, and then to remain until the 7 years had expired; (iii) the SSHD was entitled to take the view that Policy DP5/96 was inimical to her immigration Policy; (iv) the SSHD’s decision to withdraw Policy DP5/96 was not irrational and did not fail to take into account the interest of the children and their parents (which was adequately addressed by Article 8 ECHR). The Court of Appeal also upheld the lawfulness of the Transitional Provisions, the purpose of which was to continued the application of Policy DP5/96 in those cases under consideration by the SSHD when the Policy DP5/96 was in force. 

23.	In Munir v. SSHD [2012] UKSC 32, the Supreme Court dismissed the argument that Policy DP5/96 was an immigration rule within the meaning of s.3(2) of the Immigration Act 1971 and had to be laid before Parliament and held that the Secretary of State had a wide discretion under the Immigration Act 1971 to grant or refuse LTR. The Supreme Court did not alter the decision by the Court of Appeal (supra) rejecting an argument that Policy DP5/96 continued to apply to families with children who had been in this country for 7 years or more when the Policy was withdrawn but did not fall within the transitional arrangements. This is, in effect, the position contended for by the Claimants in this case.

SUBMISSIONS

24.	Mr de Mello, Counsel for the Claimants, sought to challenge the Defendant’s Decision of 11th March 2011 only to grant the Claimants DLR. He did so on two basis. First, he submitted that the Claimants fall within the Transitional Provisions. Second, he submitted the Claimant had a ‘legitimate expectation’ that the SSHD would consider proceeding with, or initiating, enforcement action against, the Claimants within a reasonable period of time.

25.	Mr Mandalia, Counsel for the SSHD, invited the Court to reject the Claimants challenge as having no basis in law or fact.

THE ISSUES

26.	There are two main issues to be determined:

(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

27.	There are no past or extant appeals in this case. Accordingly, only the fourth and fifth bullet points of the Transitional Provisions are relied upon by the Claimants and potentially relevant. They provide respectively: 

“• 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.”

28.	There are, therefore, two questions to be considered: (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? (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?

(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?

29.	The question is whether or not the conditions required by the fourth bullet point of the Transitional Provisions have been fulfilled. Two issues arise. The first is one of construction as to the true meaning of the provision. The second is a factual issue as whether or not any acknowledgement by the UKBA in fact satisfied the conditions of the provision. 

Construction

30.	The true construction of policies such as Policy DP5/96 is matter for the Court on an objective basis (Raissi [2008] EWCA Civ 72, and Humphries [2008] EWHC 1585 [72]).

31.	The fourth bullet point of the Transitional Provisions identifies a situation “… where UKBA have acknowledged in writing that they have received an application which relies on DP5/96”. A question of construction arises. The sentence is potentially capable of two different meanings. The first meaning is that the UKBA must have expressly acknowledged in writing two matters, namely that (a) it has a received an application for LTR, and (b) the application which it has received is one which relied on Policy DP5/96. The second meaning is that the condition is satisfied if the UKBA have simply acknowledged in writing that it had a received an application for LTR, and that application is one which in fact relies on Policy DP5/96, even though the UKBA have not expressly acknowledged that fact.  Mr de Mello, Counsel for the Claimants, contended for the latter construction and relied upon the principle of contra proferentem. Mr Mandalia, Counsel for the SSHD, contended for the former construction.  

32.	In my judgment, the first construction is clearly correct for three reasons. First, the ordinary and natural meaning of the language points to the first construction, i.e. that the UKBA acknowledgment must be two-fold, namely, (a) that an application for LTR has been received and (b) that the application received is one which relies on Policy DP5/96. Second, the syntax also favours the former construction: the words “acknowledged in writing that…” govern both parts of the remainder of the sentence. The sentence could have been constructed differently, viz. “…where UKBA have acknowledged in writing receipt of an application for LTR, which application relies on DP5/96”. Third, the general context also points to the first meaning as the one intended: the purpose of the Transitional Provisions was clearly to preserve legitimate rights or expectations in cases where the Policy was already ‘in play’ or under active consideration by the SSHD. That was not the position in the present case (see below). There were no indicia of estoppel present here.

Correspondence

33.	The Claimants rely upon the correspondence prior to the withdrawal of the policy on 9th December 2008. Six letters were written by or on behalf of the Claimants to the SSHD during the period 2007 to 2008, namely letters dated (i) 6th June 2007, (ii) 26th September 2007, (iii) 13th March 2008, (iv) 9th October 2008, (v) 10th October 2008, and (vi) 14th October 2008 (see above).  

34.	The SSHD only replied on one occasion, namely on 17th July 2007, when the UKBA wrote acknowledging receipt of the Claimants’ first letter dated 6th July 2007.  In its response on 17th July 2007 the UKBA said as follows (emphasis added):

“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…” 

35.	The letter was simply an acknowledgement of receipt of an application for LTR based on asylum. It was not any acknowledgment that the UKBA had received an application for LTR which relied upon Policy DP5/96. Thus, at no stage during the currency of Policy DP5/96, could it be said that the UKBA acknowledge in writing that it has received an application from the Claimants which relied on Policy DP5/96. 

36.	In my judgment, the conditions required by the fourth bullet point of the Transitional Provisions were never triggered.

(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?

37.	I turn to the fifth bullet point of the Transitional Requirements which applied to “enforcement cases where UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 9 December 2008.”

38.	Mr de Mello submitted that its conditions were clearly fulfilled, principally because a Home Office File Number “H1180361” was ascribed to the Claimants’ case on 14th June 2007 (see above). Mr de Mello’s argument, however, does not get off the ground. The fifth bullet point contains twin requirements: it must be shown both that (a) the case can be properly categorized as an “enforcement case… and (b) the UKBA have “initiated the process” of considering Policy DP5/96 prior to its withdrawal on 9 December 2008. In my judgment, neither condition can be shown to have been fulfilled in this case. 

39.	As to (a), the Claimants’ case could not be categorized as an “enforcement case…” because of the simple fact that at no stage had the UKBA commenced enforcement proceedings against the Claimants. It matters not that the Claimants, as overstayers, might have been at risk of being made subject to enforcement proceedings (under s. 10 Immigration and Asylum Act 1999). The fact is that there were no extant enforcement proceedings against the Claimants and, accordingly, theirs cannot be characterized as an “enforcement case…”. 

40.	 As to (b) there is no evidence that the UKBA had “initiated the process” of considering Policy DP5/96. The mere fact that a Home Office File Number had been ascribed to the Claimants’ case is plainly not enough. That is merely a matter of record-keeping. It is no evidence that the UKBA had actually addressed its mind to the Claimants’ claim to be entitled to rely upon Policy DP5/96. Indeed, there is no evidence to suggest that the SSHD had begun to consider the Claimants’ case at all prior to 2009. The UKBA’s acknowledgement of 17th July 2007 assumed that the Claimants’ letter of 6th July 2007 was a pure asylum claim and dealt with it as such (see above). This was, perhaps, not surprising since the bulk of the Claimants’ letter of 6th July 2007 was concerned with asylum and the reference to “the 7 years Children’s Policy” was something of a makeweight tucked away at the end of the letter (see above). 

41.	Accordingly, in my judgment, the conditions required by the fifth bullet point were never triggered.

Conclusion

42.	In conclusion on the first question, in my judgment, the Claimants have not shown that they fall within the Transitional Provisions. 

SECOND ISSUE:  LEGITIMATE EXPECTATION

43.	Mr de Mello relied, in the alternative, upon the doctrine of legitimate expectation. He submitted that the correspondence between the Claimant 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’. He argued that Policy DP5/96 introduced a presumption that leave would be granted save in exceptional circumstances (NF(Ghana) v. SSHD (Supra) at [39]) and that the Claimants, having raised and relied upon Policy DP5/96 several times in their letters to the SSHD, were entitled to assume that the SSHD would at least commence the process of considering its application in the context of enforcement. He further submitted that the SSHD cannot rely on her own inaction to defeat the Claimant’s claim and that the SSHD’s failure to grant the Claimant’s ILR under the terms of Policy DP5/96 was ‘unfair’ (c.f. Omar v. SSHD [2012] EWHC 3448 (Admin) [72]), or ‘conspicuously unfair’ and an abuse of power (R v. Inland Revenue Comrs, ex parte Unilever plc [1996] STC 681).  

44.	In my judgment, Mr de Mello’s argument ignores both (a) the basic principles governing the doctrine of legitimate expectation and (b) the facts as they appear plainly from the correspondence.

The principles governing legitimate expectation

45.	The starting point is to have proper regard to the true role and curtilage of the doctrine of legitimate expectation in public law. The doctrine of legitimate expectation is to protect legitimate expectations and good administration. It was never intended to burgeon into a public law panacea for every disaffection or discontentment.

46.	The principles governing its use and rationale were explained pellucidly by Laws LJ in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [68] as follows:

“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.”

47.	The principles upon which the doctrine of legitimate operates are akin to promissory estoppel. The basic hallmarks of the doctrine are “… a clear, unambiguous and unqualified representation” by the public body which the representee reasonably relies upon (see Bingham L.J. in R v. Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545 at 1569G-1970B).  Bingham LJ also pointed out (ibid, at 1569H-1970A):

“The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street.”  

48.	Whilst the categories of unfairness are not closed and precedent should act “as a guide not a cage” (per Sir Thomas Bingham MR in R v. Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 281, 290f), “…rare indeed will be the case where a fairness challenge will succeed outside the MFK parameters” (per Simon Brown LJ, ibid at 295j).

49.	The question to be asked in each case is whether it can shown that the public body in question has made a clear, unambiguous and unqualified representation which fairness dictates ought to be honoured.

Correspondence pre-December 2008

50.	The Claimant relies on correspondence with the SSHD both during and after the currency of Policy DP5/96 (i.e. both pre- and post-December 2008) in support of their plea of legitimate expectation. However, a close reading of such correspondence does not begin to show any representation by the SSHD of the nature suggested by Mr de Mello, still less a clear, unambiguous and unqualified representation in relation to Policy DP5/96 upon which the Claimants could reasonably rely.

51.	As regards the pre-December 2008 correspondence: the SSHD remained, for the most part, silent. There was only one communication to the Claimants from the SSHD: her acknowledgement letter of 17th July 2007 (see above), from which it was clear that the UKBA had not even picked up the Claimants’ reference to Policy DP5/96 at the end of the Claimants’ letter of 6th July 2007. The UKBA simply treated the Claimants’ inquiry as one relating solely to an asylum claim and no more (see above). Thus, one cannot spell out any communication from the SSHD touching on Policy DP5/96, still less one indicating an unequivocal intention on the part of the SSHD to engage with the Claimants on the basis of Policy DP5/96. 

52.	As regards the post-December 2008 correspondence: the mere fact that the SSHD acknowledged receipt of a ‘valid’ SET (O) Application by the Claimants dated 11th March 2009 and sought some clarification (see the UKBA’s  letters dated 17th March 2009, 4th June 2009 and 12th December 2009), does not begin to amount to any sort of representation that ‘the SSHD would consider proceeding with or initiating enforcement action against the Claimant within a reasonable period of time’ as Mr de Mello suggested. Counsel was unable to point to any particular words upon which such a submission might be founded. In any event, the submission is clearly hopeless when one considers (a) the clear withdrawal of Policy DP5/96 on 9th December 2009 (see above) and (b) the clear purpose of the Transitional Provisions, to protect legitimate expectations (see above).

53.	In my judgment, at no stage, either during the currency of Policy DP5/96 or thereafter, did the SSHD do anything to entitle the Claimants to assume, reasonably or otherwise, that enforcement proceedings would be commenced, still less that consideration would be given to the application of Policy DP5/96 to their case.  There is nothing in the evidence of Mr Khurrum to gainsay this.

Further analysis

54.	I reject the suggestion that there was inappropriate or actionable ‘inaction’ by the SSHD. The SSHD was not obliged to consider or commence bringing enforcement proceedings against the Claimants. The SSHD was not obliged to consider, or determine, the Claimants’ claim to be entitled to invoke Policy DP5/96.   Policy DP5/96 did not provide a separate, or freestanding, basis upon which a person could ‘apply’ to SSHD for LTR in the UK.  

55.	Policy DP5/96 comprised criteria to be applied by UKBA officers “..when considering whether enforcement action should proceed or be initiated”  against parents with children who had accumulated more than the 7 years residence here. Policy DP5/96, therefore, only operated at the stage when UKBA were considering whether enforcement action should be taken (i.e. present tense). It did not apply, or operate, prior to that stage.

56.	I reject Mr de Mello’s assertion that the Claimants’ claim is analogous to the circumstances of Mrs. Adams, the third Claimant in Abbassi v. SSHD (supra). There it was common ground that the enforcement process had in fact begun during the currency of Policy DP5/96 and HHJ Bidder QC so found. Here, enforcement proceedings against the Claimants had not even been thought about by the SSHD.

57.	I reject Mr Mello’s argument based on cases such as Dabrowski v. SSHD [2003] EWCA Civ 580, MA (Seven Year Child Concession) Pakistan [2005] UKIAT 00090, R(A) v SSHD [2008] EWHC Admin 2844 and Ghana v. SSHD (Supra). These cases are plainly distinguishable from the present. The fact that it may have been the SSHD’s policy to apply Policy DP 5/96 in ‘port’ cases or LTE (leave to enter) cases does not assist him. The context of this case was very different.

58.	The UKBA could not be compelled to consider enforcement proceedings. Overstayers who had ‘lain low’ for years could not somehow queue-barge by suddenly ‘popping up’ and making themselves known to the authorities and contending that the SSHD was somehow bound to consider, or initiate, enforcement proceedings against them within a time-frame of their choosing. The First Claimants’ letter of 8th October is almost a tacit acknowledgment of this. Moreover, it hardly lies in the mouth of the Claimants to complain about the SSHD not having initiated enforcement proceedings against them when they were seeking to achieve the exact opposite, i.e. to remain in the UK.

59.	It is inherent in the system that law and policy may change from time-to-time, and such changes may adversely affect those awaiting decisions (Odelola v. SSHD [2009] UKHL 25). It is axiomatic that applications for leave to enter or remain are to be decided according to the version of the rules in force at the date of decision, or whatever earlier version was in force at the time when the leave application was made.  

60.	Furthermore, there is no general obligation on the SSHD to make removal decisions under s.10 of the Immigration and Asylum Act 1999 in relation to overstayers where children are concerned: consideration of LTR and consideration of enforcement are separate matters (Daley-Murdock v. SSHD [2011] EWCA Civ 161).

Prescribed form issue

61.	The parties debated an issue as to whether, in order to fall within the scope of Policy DP5/96, it was necessary for applications to be made in a prescribed form under The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007/ 882. The issue was academic, however, because it was common ground that that the Claimants did not make a Form SET (O) Application requesting ILR or DLR until 11th March 2009, i.e. until after Policy DP5/96 had been withdrawn (see above).  

THE RESULT

62.	In summary, the Claimants do not fall with the Transitional Provisions of Policy DP5/96 and had no legitimate expectations to be entitled to the benefit of Policy DP5/96. 

63.	In the result, therefore, I dismiss the Claimants’ claim for judicial review.