Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 175

P91/15

OPINION OF LORD KINCLAVEN

In the petition of

WSM (AP) as guardian for MISS AK

Petitioner

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent

Petitioner:  Caskie; Drummond Miller LLP

Defender:  McIlvride QC; Office of the Advocate General

14 December 2016

Introduction
[1]        The petitioner seeks judicial review of a decision by the Secretary of State for the Home Department in terms of which the petitioner and her daughter were refused indefinite leave to remain in the United Kingdom, in circumstances where limited discretionary leave had already been granted.  The petitioner seeks reduction of the decision, in respect of her daughter only, as unlawful et separatim unreasonable.  The respondent is the Advocate General for Scotland, on behalf of the Secretary of State.

[2]        The case came before me for a substantive first hearing.

The Relevant Policy Context

[3]        The petitioner characterised the law in relation to the grant to children of indefinite leave to remain as “somewhat controversial”, under reference to R (SM and Anr) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) in which the Secretary of State’s inflexible policy, which has been revised subsequently, was deemed to be unlawful.  In these proceedings, however, the petitioner’s only challenge is to the discretionary decision of the Secretary of State in terms of the revised policy.  There is no challenge to the lawfulness of the policy itself. 

[4]        Insofar as material, and founded upon by the petitioner, the Secretary of State’s revised policy in respect of applications for discretionary leave (from 24 June 2013), in cases concerning children, provides (para 1.2) as follows:

“In cases where it is considered appropriate to grant [discretionary leave], decision makers must also consider whether to exercise discretion in relation to the length of leave to be granted.  This is because a decision about duration of leave granted outside the rules is an immigration function to which section 55 [of the Borders, Citizenship and Immigration Act 2009] applies.  Decision makers must demonstrate they have had regard to the child’s best interests when considering the type and length of leave granted following a decision to grant a period of leave outside the rules…  

4.4 (Non-standard grant periods: Longer periods of stay)

There may be cases where a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child, (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period or [indefinite leave to remain]…

In cases involving children, decision makers must regard the best interests of the child as a primary consideration (although not necessarily the only consideration) when deciding the duration of leave to be granted.  Whilst the expectation is that in most cases a standard period of 30 months (2.5 years) [discretionary leave] will be appropriate, there may be cases where evidence is provided showing that a longer period of leave (or [indefinite leave to remain]) is required in order to meet the best interests of the individual child under consideration.

Factors such as the length of residence, whether the child was born in the UK and strong evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than [indefinite leave to remain] need to be weighed against immigration history, including conduct of the parents or guardians, and wider requirements to ensure a fair, consistent and coherent immigration policy…

In all cases the onus is on the applicant (or their representative) to provide evidence as to why it is in the best interests of the child to be granted a period of leave that is longer than the standard period of [discretionary leave].  Where a decision maker considers that it is in the best interests of the child or there are exceptional, compelling reasons to depart from the policy of granting 30 months [discretionary leave], the case must be referred to a Senior Caseworker for further consideration.” (emphasis added)

[5]        It is generally accepted that the best interests of the child must be a primary consideration (although not necessarily the only consideration) when making decisions affecting children (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4), and that account must be taken of the need to safeguard and promote the welfare of children in the United Kingdom (Borders, Citizenship and Immigration Act 2009, s 55).

[6]        Broadly, however, the petitioner contends that the Secretary of State has failed to take account of these considerations in the exercise of her discretion in the present case.

Procedural history

[7]        The petitioner is a citizen of Iraq.  In March 2003, the petitioner and her two daughters entered the United Kingdom as dependents of the petitioner’s husband.  The petitioner’s husband was granted leave to enter as a highly skilled migrant.  The petitioner’s daughters were then aged 16 and 2.  The younger of the petitioner’s daughters is the subject of the present proceedings.  The immigration status of the petitioner and her younger daughter depended upon the petitioner’s husband’s status from time to time until, on 22 February 2010, the petitioner and her daughter applied for leave to remain in the United Kingdom independently, an application by the petitioner’s husband having been refused.

[8]        The petitioner’s application contended that it would be disproportionate in terms of Article 8 of the European Convention on Human Rights to expect her and her daughter to return to Iraq “after such a length of residency in this country and clear integration into Scottish society.  We would ask that they be granted leave to remain.”  No further specification was provided as to the length and type of leave sought.  On 21 January 2011, the petitioner’s application was refused.  Whilst the Secretary of State acknowledged the family life existing between the petitioner and her daughter, their claim of continuous residence in the United Kingdom since 2003 was rejected.  The petitioner and her daughter appeared to have remained outside the country for a period of at least a year and five months between 2004 and 2006.  In all the circumstances, it was deemed to be reasonable and proportionate for the petitioner and her daughter to continue their family life outside of the United Kingdom.  There were no exceptional circumstances justifying the grant of discretionary leave outside of the immigration rules.

[9]        On 9 February 2011, the petitioner made further representations in respect of alleged factual errors in the Secretary of State’s decision, in particular with regard to the disputed period of residence in the United Kingdom.  On 28 July 2011, despite acknowledging that some confusion had arisen in respect of the relevant period of residence, the Secretary of State refused to depart from the decision.  The petitioner raised judicial review proceedings and, on 23 May 2012, the Secretary of State withdrew the decision. 

[10]      On 7 September 2012, upon reconsideration of the application, discretionary leave was again refused.  The petitioner raised appeal proceedings before the First-tier Tribunal and again, on 20 November 2012, the Secretary of State withdrew the decision. 

[11]      In the course of the appeal proceedings, statements of the petitioner and the petitioner’s daughter (now forming Nos. 6/5 and 6/6 of Process, taken on 23 and 2 October 2012 respectively) were lodged in support of the appeal.  In the present proceedings, it is said that these statements “make clear the basis upon which the Secretary of State should have granted indefinite leave to remain to the petitioner’s daughter”.  The statements are produced and incorporated within the petition.  Notably, however, a separate note lodged by the petitioner in the appeal proceedings records that the “crucial issue” in the appeal was whether the petitioner and her daughter had remained resident in the United Kingdom between 2004 and 2006, the petitioner contending that the Secretary of State’s refusal of leave to remain had been based on the factually inaccurate assertion that the petitioner and her daughter had spent around a year and a half in Iraq during that period.

[12]      Finally, on 9 September 2013, the Secretary of State granted the petitioner and her daughter limited leave to remain for 30 months’ duration, until 3 March 2016.  No reasons are set out in the body of the decision letter that has been produced by the respondent before this court.

[13]      On 10 March 2014, the petitioner issued a pre-proceedings letter (PN No 2 of 2013), which contended (for the first time) that the petitioner ought to have been granted indefinite leave to remain, rather than a restricted grant of discretionary leave (citing R (SM and Anr) v Secretary of State for the Home Department (supra)).  The letter founded in brief terms upon the period of the petitioner’s residence with her daughter in the United Kingdom, and the fact that the petitioner’s daughter has undertaken her schooling in the United Kingdom.  It was submitted that the Secretary of State had acted unreasonably in restricting the grant of leave to two and a half years, and that she had failed to give proper consideration to the impact of section 55 of the Borders Citizenship and Immigration Act 2009. 

[14]      The petitioner’s request for indefinite leave to remain was refused on 19 March 2014.  The refusal letter noted that no argument had been put forward as to why it was contrary to the petitioner’s daughter’s best interests to be granted “the normal period of discretionary leave”.  There was nothing to suggest that the petitioner and her daughter had been adversely affected by the decision to grant discretionary leave (citing DM [2013] CSOH 114, para 20, and R (Geraldo and Ors) v Secretary of State for the Home Department [2013] EWHC 2763 (Admin), paras 67 and 69) or that it was necessary to grant indefinite leave to remain in order to comply with the requirements of section 55 of the 2009 Act.  The best interests of the petitioner and her daughter had “not been shown to be impeded by the current grant of leave in any way”.  On 2 June 2014, the petitioner reiterated by way of a further pre-proceedings letter that:

“It is submitted that it is not in the best interests of [the petitioner’s] child to be granted discretionary leave to remain.  The decision to grant 2.5 years discretionary leave has had a serious impact on the child…  The precarious immigration situation is counterproductive to the child’s well-being and development as well as inhibiting future development of the child.” 

[15]      On 10 June 2014, the Secretary of State issued a supplementary decision letter in response, refusing to alter the existing decision.  It was noted, in particular, that the petitioner had “submitted no specific evidence in support of this claim in terms of medical, psychological or educational reports”.  The length and type of leave granted remained unchanged. 

The Petitioner’s Position

[16]      The petitioner submitted before this court that the effect of the Secretary of State’s policy would be that the petitioner’s daughter could have no expectation of indefinite leave to remain in the United Kingdom until she reached the age of twenty-three.  Four periods of leave to remain of 2 ½ years each would have to be granted, each application for an extension being subject to “active review” as to whether she still qualified for discretionary leave (revised policy, para 7.1), before an application for indefinite leave to remain could be considered.  The Secretary of State had not indicated otherwise.  The position was therefore precarious. 

[17]      The particular submissions now advanced in respect of the impact on the petitioner’s daughter of her “precarious” immigration status are (stat. 24) that:

“Her ability to travel on school trips will be reduced, her ability to travel abroad will be reduced, her ability to access benefits, including student loans etc will be significantly reduced, her ability to enter university in a straightforward manner will be reduced because any university considering an application for her admission will be required to note that she cannot expect to be granted indefinite leave to remain until the completion of her course and therefore her position in the United Kingdom would be more precarious.  Her ability to enter work, particularly in the civil service and public sector will be significantly reduced; her ability to enter vocational training will also be reduced as a result of her temporary status in the United Kingdom.  It is inherently less likely that an employer will decide to invest in training that person where their status in the United Kingdom is precarious…

The Petitioner’s child’s ability to obtain British citizenship will be delayed until she is at least twenty-four years old despite the fact that she has lived in the United Kingdom since she was two years and one month and is now thirteen.  All of these are significantly (sic) factors of which the Secretary of State should have been aware when considering whether or not it was appropriate to grant and maintain her decision to grant only discretionary leave to remain to the Petitioner’s child.  The Respondent’s Answer is in effect a bare denial and should be regarded as an admission.  There is no reference to the Petitioner’s child’s ability to obtain British citizenship.”

[18]      It was submitted that the Secretary of State’s decision to refuse to grant indefinite leave to remain was vitiated by her failure to have regard to those matters, or to provide reasons why those matters did not cause her “to depart from her general policy” (ibid).  All of the matters referred to by the petitioner (stat. 26) as “the advantages of indefinite leave over discretionary leave” were said to be matters of law and/or which should fall directly within the Secretary of State’s knowledge.  It had therefore been unnecessary for the petitioner to point them out.  The Secretary of State had failed to provide any or adequate reasons why, in terms of the applicable policy, the petitioner’s daughter should not be granted indefinite leave to remain.

[19]      In particular, the Secretary of State had not identified any countervailing factors to be weighed, in terms of the revised policy (supra), against factors such as the length of residence, whether the child was born in the United Kingdom and strong evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than indefinite leave to remain. 

[20]      The Secretary of State’s decision had also to be viewed in the context of her policy that applications involving children should be dealt with in a timely and sensitive manner.  In this regard, the petitioner founded upon the delay, from February 2010 to September 2013, in dealing with the petitioner’s application, and the issuing of decisions that were not subsequently defended in judicial review and appeal proceedings.

The Respondent’s Position
[21]      The respondent contended that the petitioner was not entitled to the orders sought.  It was submitted that the petitioner and her daughter did not qualify for leave to remain in the United Kingdom in terms of the Immigration Rules.  The Secretary of State had therefore exercised her discretion to grant leave to remain outside the rules, and was under no obligation to grant indefinite leave to remain. 

[22]      The extent to which the petitioner considered that her daughter may be inconvenienced by the grant of discretionary leave was not known and not admitted.  The Secretary of State had been reasonably entitled to conclude that no information had been put before her by the petitioner which established that a grant of discretionary leave to remain was unlawful or unreasonable (R (Alladin) v Secretary of State for the Home Department [2014] EWCA Civ 1334; R (Omokayode) v Secretary of State for the Home Department [2014] EWHC 594 (Admin)).

Decision

[23]      Whilst the petitioner has a long immigration history, the core dispute between the parties is relatively narrow.  Following upon the eventual grant of discretionary leave, the question for consideration is whether such leave ought to have been granted for a limited or indefinite period. 

[24]      A fundamental difficulty in respect of the petitioner’s claim in these proceedings is that the Secretary of State gave the petitioner exactly what she had asked for.  At no point prior to the making of the decision to grant discretionary leave did the petitioner make it clear that “an immediate grant of indefinite leave to remain was being sought” (c.f. R (SM and Anr) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin), para 13 cited in R (Alladin) v Secretary of State for the Home Department [2014] EWCA Civ 1334 at para 17).  Nor, as a consequence, was any of the information then placed before the Secretary of State expressly, or reasonably to be inferred as, directed to such an end. 

[25]      In particular, and contrary to the terms of the present petition, the statements of the petitioner and the petitioner’s daughter lodged in the earlier appeal proceedings, in October 2012, set out no basis upon which the Secretary of State ought to have granted indefinite leave to remain to the petitioner’s daughter or, indeed, to have considered that a request for indefinite leave was being made.  The petitioner’s statement simply rehearses her immigration and associated education and employment history, her wider family circumstances and the circumstances in which the application for discretionary leave to remain was made in February 2010, and emphasises that her main concern is the welfare of her youngest daughter who, after residing in the United Kingdom for over nine years, where her school and friends are, considers it to be her home.  The statement culminates in a request for the appeal to be allowed in order that she and her daughter “are allowed to remain in the United Kingdom”.  The statement of the petitioner’s daughter broadly outlines the schooling, friendships and extracurricular activities enjoyed by her, and a general expression of love of life in the United Kingdom but likewise, and perhaps unsurprisingly, nothing more specifically relevant to the nature of leave sought. 

[26]      That being so, the particular decision that is sought to be reviewed in these proceedings requires some consideration.  The petition is said to be directed against a decision “to refuse to grant the petitioner’s daughter indefinite leave to remain in the United Kingdom”.  The petitioner’s application having sought nothing more than discretionary leave to remain, the decision of 9 September 2013 granting such leave cannot properly be considered to constitute a decision to refuse indefinite leave, such as now challenged. 

[27]      The point is aptly made in R (Alladin) v Secretary of State for the Home Department (supra) (Floyd LJ para 71) in response to the submission made in that case that the positive duty under section 55 of the Borders Citizenship and Immigration Act 2009 required the Secretary of State to consider what might be said in support of indefinite leave to remain, notwithstanding the absence of any request for that status or any material specifically directed to it.  The court observed that:

“The fact that [indefinite leave to remain] was not even requested is a compelling reason for not granting it.  Apart from the fact that there were children involved, there was nothing in the present case to alert the Secretary of State to any need on behalf of the applicant for [indefinite leave to remain].  She was perfectly entitled to reach the conclusion that the applicant himself considered that the section 55 duty would be satisfied by such a grant [of discretionary leave to remain].”  

Such observations apply with equal force in the present case.  There was no obligation on the Secretary of State to grant indefinite leave to remain when what had been asked for was simply leave to remain. 

[28]      Whilst the decision of 9 September 2013 is produced by the respondent, the petitioner produces only the subsequent pre-proceedings correspondence of March and June 2014 which addresses the discrete issue of indefinite leave to remain.  Insofar as the petitioner founds upon the responses of the Secretary of State as decisions to refuse indefinite leave to remain (see e.g, stat 22), however, the petitioner’s position is little improved.  There is no specification or material provided in support of the petitioner’s bald assertions in correspondence that the grant of discretionary leave was not in her daughter’s best interests, far less that her best interests required the grant of indefinite leave (and not, for example, a longer period of discretionary leave).  The nature of any alleged detriment to her wellbeing or development is entirely opaque. 

[29]      Nor is that apparent deficiency remedied by the material now set out in the present petition.  As already outlined, the statements of the petitioner and her daughter, as relied upon in the present proceedings, provide no substance to the claim that indefinite leave ought to have been granted.  The petitioner’s further statements of fact in the present petition with regard to the impact of her daughter’s precarious immigration status (stat 24, supra) are, by the petitioner’s own argument, matters which might generally be in contemplation as potential consequences of the grant of discretionary as opposed to indefinite leave to remain, at least in relation to periods of “limbo” (R (Alladin) v Secretary of State for the Home Department [2014] EWCA Civ 1334, paras 61 – 63).  Such generalised statements are, however, more obviously directed to a challenge to the lawfulness of the Secretary of State’s policy of staged route to settlement, which is not advanced in these proceedings, and are insufficiently directed to any particular circumstances of the petitioner’s daughter “showing that a longer period of leave (or [indefinite leave to remain]) is required in order to meet the best interests of the individual child under consideration” (revised policy, para 4.4, supra).  The petitioner has failed to make out such a case, and to discharge the onus upon her “to provide evidence as to why it is in the best interests of [her daughter] to be granted a period of leave that is longer than the standard period” of discretionary leave (ibid).  It is for the petitioner to place something in the scales by way of evidence to suggest that her daughter’s life would be adversely affected by a grant of limited rather than indefinite leave to remain (assuming such leave to have been sought) before it becomes the task of the Secretary of State to weigh any countervailing factors against it.

[30]      In relation to the petitioner’s application, the Secretary of State was entitled to conclude that there was no reason why it would be appropriate to exercise her discretion otherwise than in accordance with the general expectation of granting a “standard period” of discretionary leave.  The petitioner ought to have expected that such leave would be granted in accordance with the prevailing (revised) policy.  Indeed, the petitioner appears to accept (stat 23) that, at least in the present proceedings, the Secretary of State can only be expected to apply her policy.  That is what she has done in the present case.

[31]      In any event, given that the period of discretionary leave granted to the petitioner and her daughter has now expired, both will be entitled to make a further application for leave to remain, and to present such further evidence or submissions as may support a different conclusion.  Accordingly, reduction of the Secretary of State’s decision in the present case would have no practical effect, and as an equitable remedy therefore ought not to be granted.

Disposal
[32]      In the whole circumstances, therefore, I am satisfied that the decision complained of was neither unreasonable nor unlawful.  Accordingly, I shall sustain the respondent’s plea‑in-law, repel the petitioner’s plea-in-law and refuse the orders sought in the petition.

[33]      I shall reserve meantime the question of expenses.