United Kingdom Asylum and Immigration Tribunal

BP (DP3/96 – Unmarried Partners) Macedonia [2008] UKAIT 00045

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 7 June 2007

Date Determination notified: 28 February 2008

Before

SENIOR IMMIGRATION JUDGE STOREY

SENIOR IMMIGRATION JUDGE LATTER

Between

BP	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr I Macdonald QC instructed by Procol & Cantor Solicitors For the Respondent: Mr J Wright, Home Office Presenting Officer, Ms Z Kiss, Home Office Presenting Officer

DETERMINATION AND REASONS

1. DP3/96 which along with DP2/93 was revoked on 24 April 2008 applies to married persons only. It is a policy in the form of casework instructions that identify factors covering marriage and children which must be considered before removal action is initiated or enforced and it is not as such a leave-conferring policy.

2.it may be that by virtue of a ministerial statement made to Parliament on 16 June 1999, the Home Office policy on enforcement action in the case of married persons (as expressed in DP3/96) was complemented by a parallel concession relating to persons in a relationship akin to marriage. Applying as it does to unmarried, cohabiting persons prior to the initiation of enforcement action, it is not to be confused with the Unmarried partners concession or with the Immigration Rules paras 259A-0 (both of which only apply to persons with valid leave).

3. Applying a common sense approach to chapter 36.4 of the Operational Enforcement Manual dealing with common-law relationships (as Home Office caseworkers are expected to do) a person can show he or she has met the requirement of 2 years in a relationship akin to marriage even if for part of that period the couple were married.

1. The appellant is a national of Macedonia. In a determination notified on 15 July 2005 Immigration Judge Walters dismissed her appeal against a decision dated 20 April 2005 refusing her application for leave to remain on human rights grounds and a decision to give directions under section 10 of the Immigration Act 1999 for removal from the United Kingdom. She successfully obtained an order for reconsideration and the matter came before us at a hearing on 7 June 2007. Following that hearing the Tribunal sent a Memorandum to the parties dated 17 September 2007 seeking further submissions, asking the respondent in particular to clarify whether there were any policy considerations applied to persons who were able to show, prior to commencement of enforcement action, that they had lived together for 2 years albeit for some of that time in a relationship akin to marriage and for some of it as a married couple. When that Memorandum failed to produce a response from the respondent, the Tribunal listed the case for a further hearing on 11 January 2008. As a result of an undertaking by Ms Kiss given at that hearing, we agreed to await a further submission from the respondent. In correspondence to the Tribunal dated 8 February 2007 Ms Kiss stated that on 25 January 2008 the appellant's case had been reviewed and an undertaking to grant the standard period of three years Discretionary Leave was made. A letter of the same date addressed to the appellant's solicitors stated that as a result of this undertaking the appellant's appeal "is considered abandoned".
2. We are unable to agree with that assertion. Section 104(4A) of the Nationality, Immigration and Asylum Act 2002 Act states that an appeal under s.82 (1) brought by a person while he is in the United Kingdom "shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom, subject to subsections 4(B) and 4(C)." (neither of the latter apply to this appellant). This provision does not state that an appeal is to be abandoned simply on the strength of an undertaking to grant leave to remain. Nor have we had anything from the appellant's representatives withdrawing this appeal. We would add that even if we had decided the appeal was abandoned or withdrawn, we would still have set out our reasoning and conclusions as given below, since we consider it is of some importance for the position relating to persons in a relationship akin to marriage who face enforcement action to be clarified and made more widely known. It has taken us some time to get to the bottom of it.
3. The appellant came to the UK on a visitor's visa which expired on 20 April 2000. Upon expiration of this visa she remained in the United Kingdom working as a part-time waitress on a casual basis for various hotels and restaurants until 2003. She also undertook studies. Over Christmas 2001 she met her future husband. Subsequently, on 11 March 2003, she became engaged to him and moved into his home. They married on 24 May 2003. Later that year the couple sought advice from solicitors with a view to regularising her immigration status. On 3 June 2003 they applied on her behalf for leave to remain on the basis of marriage. She said that the firm concerned assured her she would gain permission to remain but after a year of waiting, she changed to her present solicitors. Their efforts on her behalf also met with delay.
4. The refusal decision letter of 20 April 2005 first explained that the appellant could not qualify under the Immigration Rules (paragraph 284) as she was an overstayer. It then made reference to the "guidelines" for dealing with marriage applications from overstayers (a document commonly referred to as DP3/96). "These guidelines", it said:

"state that it will normally be appropriate to consider granting leave to remain, exceptionally, on the basis of a marriage if we are satisfied that:

i. the marriage is genuine and subsisting; and

ii. that it pre-dates the services of an enforcement notice by at least two years; and

iii. that it is unreasonable to expect the settled spouse to accompany his/her spouse on removal."

5. The refusal decision letter pointed out that the appellant's case did not fall within this general rule since her marriage on 24 May 2003 did not pre-date by two years the service of notice of liability to removal.
6. The letter continued:

"Notwithstanding the general policy we have considered whether it would be right to allow your client to remain but having considered all the circumstances of her particular case it is concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of marriage. It is considered that it would be reasonable to expect both parties to have been aware that [the appellant's] precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although [her] spouse is a British citizen we believe that [he] could reasonably be expected to live in Macedonia."

7. The letter then turned to consider the appellant's position under Article 8 of the ECHR. Given that it was considered that the appellant's spouse was free to accompany her to Macedonia, it was not accepted that there had been an interference with their right to respect for family life. As regards the right to respect for private life, it was stated that since her private life had been established whilst she had been in the UK unlawfully, in the knowledge that she had no right to be here and may be removed at any time, "any interference with [her] private life is necessary and proportionate to the wider interest of the maintenance of an effective immigration policy."
8. The grounds for reconsideration contended that the Immigration Judge had erred in his approach to DP3/96 and in his approach to Article 8. They highlighted the fact that the Immigration Judge had been satisfied that the appellant's marriage was genuine and subsisting, that the couple had cohabited for more than two years at the date of decision and that it would not be reasonable to expect her husband to accompany her upon removal to Macedonia. Given those findings he should have found that the appellant's circumstances fell within the DP3/96 guidelines and that the decision appealed against amounted to a disproportionate interference with her right to respect for private and family life. The grounds also pointed to an apparent inconsistency on the part of the Immigration Judge in having decided on the one hand that it was not reasonable to expect her husband to accompany her (essentially for medical reasons) yet on the other hand to have considered it appropriate for him to visit her.
9. The application for reconsideration was refused by a Senior Immigration Judge but succeeded on statutory review, Collins J stating:

"I am not impressed by the reasons for delay in lodging this application. The decision of the Immigration Judge was harsh, but, if he correctly construed DP3/96, was not erroneous in law. The appellant had lived with her husband since early March 2003 and so if cohabitation rather than the date of marriage was the relevant test, she would have qualified. There had been undue delay by the respondent and the appellant was not well served by her solicitors. Equally there is no doubt that her husband would not go to live with her in Macedonia contrary to the views expressed in the refusal letter. Whether it was reasonable to believe he would visit her there is open to question. She has undoubtedly abused the immigration laws, but that is not necessarily fatal. Mr Macdonald QC suggests the policy was not fully explained and properly applied…"

10. It is clear from the above that an issue which Collins J saw as of central importance was whether the DP3/96 policy was correctly understood and/or applied. His reasons made reference to the point raised by Mr Macdonald in the grounds for statutory review. It is a point of some interest, because, if Mr Macdonald is right, then the Immigration Judge did materially err in law. What Mr Macdonald asserts is that the DP3/96 guidelines were effectively amended or modified by dint of a written statement to Parliament on 16 June 1999 made by Minister of State Mike O'Brien that the then unmarried partners concession would be taken into account in the same way as the marriage policy in deciding whether to remove overstayers. The Minister stated to Parliament:-

"It has been decided that, in order to demonstrate a commitment akin to marriage, it is not necessary to demonstrate a prior cohabitation period of four years, and the prior cohabitation period has, therefore, been changed to two years. The probationary period before settlement may be granted has been increased to two years, which means that there will be a four year cohabitation period before the grant of settlement. Where applicable, these new arrangements will be taken into account when deciding whether or not to initiate enforcement action. The other provisions of the concession remain unchanged".

11. The way Mr Macdonald put matters in his grounds (which we treat as an extension of the original grounds for reconsideration) was as follows:

"In reaching his decision to refuse leave to remain, the Secretary of State referred to DP3/96 but failed to refer to or to take into account the policy changes indicated by the Minister's said reply as a result of the concessions and later rule changes putting co-habitation by couples on a par with marriage, and has thereby acted unreasonably and not in accordance with the law (see Khan v Immigration Appeal Tribunal [1984] 1 WLR 1337; [1984] Imm AR 68, CA)."

12. In his submissions both for the original and the resumed hearing Mr Macdonald clarified that he did not seek to pursue any suggestion that the appellant could rely on a legitimate expectation. His primary submission was that we should treat DP3/96 as having effectively been modified as from 16 June 1999. In this context he asked us to bear in mind the purpose behind the DP3/96 policy (and its predecessor DP2/93), which was, he said, to ensure compliance with the UK's obligations under the European Convention on Human Rights; indeed DP2/93 had stated this expressly. That it was legitimate to view DP3/96 as having been modified on 16 June 1999 was supported by the fact that the latest statement of the policy in the Home Office Enforcement Manual (ch.36.4.1) did not require the existence of a relationship for the requisite two years prior to enforcement action as being one of marriage. This subsection states:

"Where a person makes representations after the commencement of enforcement action on the basis of a common law or some same sex relationship the normal course will be to proceed to enforcement action unless it is clear that the couple have lived together for 2 years or more before enforcement action commenced and that the parties are not involved in a consanguineous relationship with one another."

13. It was important, added Mr Macdonald, that it be understood properly that, unlike Article 8 case law, the Home Office policy on enforcement did not contain a requirement that the reasonableness of a person's return be assessed in part on the basis of whether an appellant would have a viable option or going abroad and applying for entry clearance. Neither DP3/96 itself nor its restatement in the current Home Office policy instructions stipulated such a requirement.
14. Mr Wright for the respondent submitted at the first hearing that the DP3/96 policy had to be read as it stood. It had not been amended by the Ministerial statement of 16 June 1999, as can be seen from the fact that its text had not been altered. Minister O'Brien's 16 June 1999 concession was only in respect of unmarried partners who had lawful leave to remain. The Home Office Manual at chapter 36.4 confirmed the unchanged nature of DP3/96.

Relevant materials

15. Before proceeding to give our decision with reasons, it is important to clarify that there are several different documents which have a possible bearing on this case.

DP3/96

16. There is DP3/96 which, as we have seen was introduced on 13 March 1996 as a revision of the Home Office enforcement policy which had previously been contained principally in DP2/93 (introduced in 1993) and DP2/96. Two points about this policy are of particular importance. First it is only concerned with persons who are married. That is how it describes itself and this point is reinforced in the current Home Office Enforcement Manual at 36.3 which states that: "Unlike the previous policy, DP2/93, it [DP3/96] does not provide for the consideration of common-law relationships akin to marriage."). Second (as Ms Kiss emphasises in her letter of 8 February 2008), DP3/96 is not as such a leave-conferring policy but rather casework instructions which contain factors concerning marriage and children and which must be considered before removal is enforced. The policy states:

"Introduction

1. This notice provides guidance, in general terms on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person and settled in the United Kingdom. This notice supersedes DP2/93 which is hereby cancelled, subject to the transitional provisions set out in paragraph 10 of this instruction. Deportation cases fall to be considered within the framework of the Immigration Rules and the attached guidance should be read in conjunction in with those rules. Although illegal entry cases are considered outside the Rules, any relevant compassionate circumstances, including those referred to below, should be considered before a decision to remove is taken.

Policy

2. Paragraph 364 of the Immigration Rules explains that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached. These include:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connection 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;

(vii) compassionate circumstances;

(viii) any representations.

3. Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation or whether they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.

4. Where enforcement action is under consideration and the offender is married to someone settled here a judgment will need to be reached on the weight to be attached the marriage as a compassionate factor. Caseworkers should bear in mind that paragraph 284 of the Immigration Rules which sets out the requirements to be met for an extension of stay as the spouse of a person present and settled in the United Kingdom. specifically requires, amongst other things, a person to have limited leave to remain here and to have not remained here in breach of the immigration on laws, in order to obtain leave to remain on that basis. Therefore, the fact that an offender is married to a person setlted here does not give him/her any right to remain under the Rules.

Marriages that predate enforcement action

5. As a general rule, deportation action under 3(5)(a) or 3(5)(b) in (non-criminal cases) or illegal entry actions should not normally be initiated in the following circumstances (but see notes below):

(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least 2 years before the commencement of enforcement action;

and

(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.

Notes

(i) in this instruction, "settled" refers to British citizens who live in the United Kingdom or to other nationals who have ILE or ILR here.

(ii) in considering whether or not, under paragraph 5(b) above, it would be unreasonable for a settled spouse to remain the subject of enforcement action on removal the onus remains with the settled spouse to make out a case with supporting evidence as to why it is unreasonable for him/her to live outside the United Kingdom. Factors which caseworkers should take into account if they are made known to them, will include whether the United Kingdom settled spouse:

(a) has very strong and close family ties in the United Kingdom such as older children from a previous relationship that form part of the family unit; or

(b) has been settled and living in the United Kingdom for at least the preceding 10 years; or

(c) suffers from ill health and medical evidence conclusively shows that his/her life would be significantly impaired or endangered if he/she were to accompany his/her spouse on removal.

(iii) In this instruction commencement of enforcement action is to be taken as either:

(a) a specific instruction to leave with a warning of liability to deportation if the subject fails to do so; or

(b) service of a notice of intention to deport or service or illegal entry papers (including the service of papers during a previous stay in the United Kingdom were the subject has returned illegally); or

(c) a recommendation by a court that a person should be deported following a conviction.

(iv) The commencement of the enforcement action "stops the clock" in terms of the 2 year qualifying period referred to in paragraph 5(a) above in which a marriage must have subsisted. No further time can then be accrued to meet this criterion, e.g. whilst making representations, appealing against the decision or applying for judicial review.

(v) This notice contains guidance as to the approach to be adopted in the generality of cases but it must be remembered that each case is to be decided on its individual merits and, for instance, a particularly poor immigration history may warrant the offender's enforced departure from the UK notwithstanding the factors referred to above.

Criminal convictions

6. In cases where someone is liable to immigration control has family ties here which would normally benefit him/her under paragraph 4 above but has criminal convictions, the severity of the offence should be balanced against the stength of family ties. Serious crimes which are punishable with imprisonment or a series of lesser crimes which show a propensity to re-offend, would normally outweigh the family ties. A very poor immigration history may also be taken into account. Caseworkers must use their judgment to decide what is reasonable in any individual case.

Children

7. The presence of children with the right of abode in the UK (see note below) is a factor to be taken into account. In cases involving children who have the right to abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad. Factors to be considered include:

(a) the age of the child (in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad);

(b) serious ill-health for which treatment is not available in the country to which the family is going.

Note

(i) Children will have the right to abode must commonly as a result of having been born in the United Kingdom to a parent settled here. It should be noted that under the British Nationality Act 1981 an illegitimate child born in the United Kingdom obtains British citizenship only if the mother is a British citizen or is settled in the United Kingdom. Under the 1981 Act the status of the father of a child born illegitimate has no bearing on the nationality of the child unless she subsequently marries the mother and thus legitimises the child.

Marriages that postdate enforcement action

8. Where the person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. Paragraph 284 of the Immigration Rules makes it clear that one of the requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom is that "the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or has been given notice under Section 6(2P of the Immigration Act 1971". Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal. Detailed enquiries in order to ascertain whether the marriage is genuine and subsisting should not normally be undertaken. The onus is on the subject to put forward any compelling compassionate factors that he/she wishes to be considered which must be supported by documentary evidence. Only in the most exceptional circumstances should removal action be stopped and the person allowed to stay.

Marriage to European Economic Area (EEA nationals)

9. Any foreign national who contracts a marriage to an EEA national should have his/her case considered in the first instance by EC group, B6 … to whom the case must be referred, irrespective of whether the marriage took place before or after the initiation of enforcement action.

Transitional arrangements

10. This instruction will not apply retrospectively. It has immediate effect in cases where the marriage came to the notice of the Immigration and Nationality Department after 13 March 1996 irrespective of the date on which the marriage took place. case where the marriage came to notice on or prior to 13 March 1996 should be considered under the terms of DP2/93.

Enquiries

11. Any enquiries about this instruction should be addressed to the Enforcement Policy Group in Room 301, Apollo House (Ext. 8408/8409).

Enforcement Policy Group

13 March 1996"

17. The policy is also accompanied by a Flow Chart which begins: "This flow chart should be used as a guide only. There will occasionally be cases which fall outside the guidelines".

Unmarried partners concession

18. Then there is the unmarried partners' concession, which gave effect (as from 13 October 1997) to Immigration Minister O'Brien's announcement on 10 October 1997. Its full title is "Concession Outside the Immigration Rules for unmarried partners of persons present and settled in the United Kingdom, or being admitted on the same occasion for settlement, or who are in the United Kingdom in a category leading to settlement, or who have been granted asylum". The wording of the title highlights the fact that this concession, so far as it relates to after-entry, only covers persons who have valid leave to be in the United Kingdom: it does not cover overstayers or illegal entrants and is not concerned with enforcement.

Immigration Rules paras 259A-0

19. There are also the Immigration Rules dealing with unmarried couples. Provision in the Immigration Rules for people who are not married but are now in a permanent relationship were first made in October 2000 (HC 395, paras 295A-O). Mr Macdonald stated that these Rules "replaced hard-won concessions concerning the admission of heterosexual cohabitees and same-sex partners, and were added to give effect to the right to family or private life under Article 8 of the ECHR". A similar feature of these provisions is that (so far as they related to after-entry cases) they only apply to persons who have valid leave to be in the United Kingdom.

The 16 June 1999 concession on relationships akin to marriage

20. As already noted, on 16 June 1999 Minister of State Mike O'Brien stated to Parliament:-

"It has been decided that, in order to demonstrate a commitment akin to marriage, it is not necessary to demonstrate a prior cohabitation period of four years, and the prior cohabitation period has, therefore, been changed to two years. The probationary period before settlement may be granted has been increased to two years, which means that there will be a four year cohabitation period before the grant of settlement. Where applicable, these new arrangements will be taken into account when deciding whether or not to initiate enforcement action. The other provisions of the concession remain unchanged".

Home Office policy instructions

21. And then there are the Home Office policy instructions which amplify DP3/96 and also deal with persons in "common law relationships". On the basis of the documentation shown to us (and as the parties agreed was the case) such instructions have accompanied DP3/96 ever since 1996. They were produced before us in the form they now have in the Borders and Immigration Agency (BIA) web pages under the heading Law and policy – Operational Enforcement Manual – Section D ("Other Factors"). Chapter 36 of this Manual, headed "Extenuating Circumstances" deals with a number of different sets of circumstances affecting enforcement policy, including, inter alia: long residence, marriage and common law relationships, EU and Association Agreement cases, children, medical cases.

(a) Instructions concerning DP3/96 in marriage cases

22. At ch.36.3.3, headed "Procedures when dealing with an offender whose marriage falls to be considered under DP3/96" the Manual sets out guidance which (the parties agreed) essentially replicates the text of DP3/96.
23. As already noted it then makes clear at ch.36.3 that DP3/96 only applies to married persons. It does this in the following terms:

"Marriage to a British citizen or a person settled here

The policy guidelines DP3/96 for such marriages came into force on 13 March 1996 (see 36.3.2). Unlike the previous policy, DP2/93, it does not provide for the consideration of common-law relationships akin to marriage".

(b) Instructions on unmarried partners

24. However, the chapter then goes on to deal under a separate sub-heading with unmarried partners in 36.4. This begins by reiterating that DP3/96 does not cover unmarried partners:

"36.4 Common-law relationships

Marriage policy in DP2/93 applied equally to common-law relationships akin to marriage. Any common-law relationship that was brought to the notice of the Department on or before 13 March 1996 should be considered under policy DP2/93 (see 36.3 and 36.3.1). Its successor, DP3/96, did not extend consideration to common-law relationships akin to marriage and such relationships, if they came to notice after 13 March 1996, no longer availed offenders."

25. It then proceeds to explain what procedures should be used in relation to unmarried partners:

"36.4.1 Procedures when dealing with an offender who is the unmarried partner of a person present and settled in the UK

Enforcement action should not normally be initiated in the following circumstances:

Where the subject has a genuine and subsisting relationship akin to marriage with a person present and settled in the United Kingdom and the couple have lived together in this country for at least two years before the commencement of enforcement action

and

any previous marriage (or similar relationship) by either partners has permanently broken down

and

it is unreasonable to expect the settled partner to accompany the subject on removal

and

the couple are not involved in a consanguineous relationship with one another.

Where a person makes representations after the commencement of enforcement action, on the basis of a common-law or same sex relationship, the normal course will be to proceed to enforcement action unless it is clear that the couple had lived together for 2 years or more before the enforcement action commenced and that the parties are not involved in a consanguineous relationship with one another.

As with cases involving marriage any compelling or compassionate circumstances advanced by the couple must be considered. Similarly, the commencement of enforcement action "stops the clock" in terms of the two-year qualifying period (see 36.3.2)."

26. The terms of 36.4.1 make clear that for unmarried couples the normal course will be to proceed to enforcement action unless the couple can establish that they lived together for 2 years prior to the commencement of enforcement action. Although its substantive provisions are not wholly identical with those of DP3/96, it can be seen that in common with DP3/96 it lays down three main requirements (the brackets deal with unmarried partners): a genuine and subsisting marriage (relationship); cohabitation for 2 years prior to commencement of enforcement action; and that it be "unreasonable to expect the settled spouse (partner) to accompany his/her spouse (partner) on removal.

Case-law

27. It is also salient to observe that, so far as we can tell, and perhaps surprisingly, the point raised by Mr Macdonald about the modifying effect on enforcement policy of 16 June 1999 statement to Parliament has not been the subject of any previous higher court or reported Tribunal decision. We highlight this because of course, DP3/96 has been the subject of much litigation, with leading cases of the higher courts having included Mahmood [2000] EWCA Civ 315 and Ahmed and Anor [1997] EWHC Admin 453 and, most recently, AB (Jamaica) [2007] EWCA Civ 1302; and reported cases of the Tribunal having included MA (DP3/96 – interpretation) [2005] Algeria UKIAT 00129, IA ('applying policies') Mauritius [2007] UKAIT 00082 and AA (DP3/96 – Commencement of enforcement action) Pakistan [2007] UKAIT 00016. We observe that in Mahmood Laws LJ stated:

"DP3/96 is badly drafted … I hope that the Home Office will look again at the terms of DP3/96, if only for clarity's sake".

and that in AB (Jamaica) Sedley LJ noted that its having been drawn up prior to the Human Rights Act has caused difficulties since October 2000 in operating it in tandem with a human rights jurisdiction.

28. Against this background we find that both the respondent in his Reasons for Refusal letter and the Immigration Judge misconstrued the relevant policy guidelines. DP3/96 was a policy created in 1996 setting out guidelines for dealing with marriage applications for overstayers in the context of deciding whether or not to take enforcement action. It did not apply to unmarried partners. However, the statement to Parliament by Minister O'Brien on 16 June 1999 did have application to unmarried partners: its plain effect was that henceforth the change in the period of prior cohabitation necessary to demonstrate a commitment akin to marriage from four years to two years had to be taken into account, where applicable, when deciding whether not to initiate enforcement action. From that date onwards, therefore, any consideration of enforcement action against an unmarried partner had to be made on the basis of that concession.
29. We do not have enough information to say with any certainty how or to what extent Home Office policy instructions to case workers since 16 June 1999 until recently made clear that this concession applied. Given the brevity of the 16 June 1999 statement to Parliament we think it very likely that when considering as from that date whether to proceed with enforcement action against unmarried partners caseworkers were expected to apply the same or very similar basic requirements as those set out for married persons in DP3/96. Further we remind ourselves that at the original hearing Mr Wright on behalf of the respondent had accepted that the Home Office policy instructions in force at the date of decision and the date of hearing were in all relevant respects the same as are now to be found in the Operational Enforcement Manual.
30. That caseworkers have been applying the 16 June 1999 concession as later codified in the Operational Enforcement Manual instructions on unmarried partners at ch.36 is rather confirmed by the further letter from Ms Kiss dated 8 February 2008 which enclosed an undated note from a Policy Advisor, Operational Enforcement Policy, Border and Immigration Agency stating:

"Most of these enforcement cases fall to be considered under either the unmarried partner's provision or DP3/96. However, there are rare occasions where the individual may fall into both policies. This is where they have cohabited before entering into marriage for part of the two year relationship requirement. This combination of two years cohabitation must have occurred prior to the service of enforcement papers.

Although there are no instructions for caseworkers to follow when dealing with these rare cases, we would expect a common sense approach to be applied by caseworkers where a subsisting relationship of two years or more through a combined cohabitation has been identified. However, each case must be considered on its individual merits. "

31. From the above it follows that whilst we have accepted Mr Macdonald's principal argument, we do not think he is right to describe the 16 June 1999 change as an amendment or modification of DP3/96. DP3/96 has always been expressly confined to married persons. It has not been modified. What has been modified is the wider enforcement policy of which DP3/96 is only a part (just as DP5/96, which sets out the seven years policy in relation to children and is dealt with at chapter 36.7.1 of the Operational Enforcement Manual, is only one other part).
32. The 16 June 1999 change was clearly not taken into account by the respondent in his reasons for refusal letter appertaining to this appellant. In that letter he confined the relevant policy to that dealing with married couples, and in particular to its requirement at DP3/96 (ii) that the marriage pre-date the service of an enforcement notice by at least two years. That amounted to a failure to take into account a relevant consideration, namely that there was a separate concession modifying enforcement policy from 16 June 1999, such that enforcement action was not to be normally initiated against an unmarried partner who could show a period of cohabitation pre-dating the service of an enforcement notice by at least two years. Heeding what the Policy Advisor letter of 8 February 2008 said was a "common sense approach", that concession should have been applied notwithstanding that the appellant's was a case of someone whose two year period of cohabitation consisted partly in a period when the couple lived in a relationship akin to marriage and party in a period when they were living as a married couple.
33. Equally clearly, this concession was not taken into account by the Immigration Judge. That failure on his part amounted to a material error of law because, on his finding, the appellant had met all other requirements of the policy - (i) and (iii) - dealing, respectively, with the marriage being genuine and subsisting and it being unreasonable to expect the settled spouse to accompany his/her spouse/partner on removal. At the original hearing Mr Wright confirmed that the respondent had not raised any other reason for refusing to apply his own policy in the appellant's favour save for the three respects just identified and Ms Kiss did not resile from that at the resumed hearing.
34. Mr Wright sought to argue at the original hearing that the Home Office had deliberately maintained, as it was quite entitled to do, a difference in the treatment of married and unmarried partners. Since February 1996 it had been decided to restrict the ambit of policy concessions for families to married persons. That was the effect of DP3/96. On the other hand, whilst since 1996 concessions and eventually Immigration Rules had been introduced to cover unmarried parties, these covered only those who were lawfully present in the UK. They did not extend to overstayers. Mr Wright submitted that both the unmarried partners concession and the Immigration Rules at paragraph 295A-O (insofar as they relate to persons in the UK seeking to remain here) contain a requirement that an applicant has limited leave to remain in the UK. However, whilst that contention is correct, it leaves unaffected the fact that the concession made by Minister O'Brien in June 1999 plainly did extend to cover overstayers, since it dealt in its final sentence with persons who were the potential subject of enforcement action.
35. Having concluded that the Immigration Judge materially erred in law we must decide what decision to substitute for his. Neither representative at either the original or resumed hearings suggested that we were not in a position to decide this matter for ourselves on the basis of the evidence before us. Time has moved on since the Immigration Judge heard the appellant's appeal, but there is no suggestion that there has been any significant change to the appellant's circumstances, except for the fact that she is now pregnant and is expecting a child of the marriage. In considering the policy dimension we must bear in mind the guidance given by the Tribunal in AG and others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082, para 50 in particular.
36. The respondent has not sought to suggest that there were any other reasons why he decided that the appellant should not benefit from the unmarried partners concession in the context of enforcement policy apart from those three specified in the reasons for refusal letter.
37. Nor has there been any challenge raised by the respondent to the Immigration Judge's finding in relation to the genuine and subsisting nature of the couple's relationship since their engagement on 11 March 2003 and in relation to it being unreasonable to expect her husband, for medical reasons, to accompany her to live in Macedonia.
38. Accordingly the only reason for the appellant not being able to benefit from government policy is one which rested on a mistaken application of a requirement of two years since marriage (which has to be a genuine and subsisting marriage). The correct requirement, as introduced by Minister O'Brien with effect from 16 June 1999, was two years since the commencement of a genuine and subsisting relationship akin to marriage. Bearing in mind that we are entitled to expect that caseworkers would have applied a "common sense" approach, we consider that the appellant should have been found to meet the two year requirement, notwithstanding that some of it was comprised of cohabitation as a common law couple and some as a married couple. Given Mr Wright's concession that there was no other relevant consideration, the only outcome of the policy, had it been properly applied, would have been to grant the appellant leave to remain Hence the decision refusing leave to remain was not in accordance with the law and accordingly the appellant's appeal against that refusal must be allowed.
39. In light of our finding that the decision was not in accordance with the law, we can deal much more briefly with the Article 8 grounds for reconsideration. Since the decision it is evident that the couple have continued to live together as a married couple and the appellant's connections with the UK have strengthened. It has been our finding that at the date of decision there was an applicable governmental concession or policy which should have been applied in the appellant's favour. That being the case, the respondent has no continuing interest in this case in applying immigration control measures against the appellant in the form of enforcement action. In other words, the interests of the state in the maintenance of effective immigration control, which are normally of heavy weight when conducting the Article 8 balancing exercise, carry no weight in this case: see PO (Interests of the state – Article 80 Nigeria [2006] UKAIT 00087 and AG and others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082.
40. For the above reasons the Immigration Judge materially erred in law. The decision we substitute is to allow the appellant's appeal both on the ground that the decision was not in accordance with the law and on the ground that it was contrary to the appellant's Article 8 rights.

Direction

41. At the original hearing we heard submissions from the parties as to the remedy we should afford (if any) in the event we decided to allow the appeal on Article 8 grounds – as we have. Mr Wright submitted that the matter of the period of any grant of leave to remain should be left for the Secretary of State to determine. Mr Macdonald initially submitted that, to the contrary, we had jurisdiction to make a grant of indefinite leave to remain and should exercise that jurisdiction by directing a grant of ILR. However, his eventual position was that this was a matter he was content to leave for the Tribunal to decide. We have no doubt that we have jurisdiction to direct a specific period of leave – see MS (Ivory Coast) [2007] EWCA Civ 133. We must also bear in mind the conclusions reached in AG and others that in a case where there is nothing to displace the presumption created by a policy in favour of granting leave "the appeal should be allowed, with a direction as indicated". However, the relevant remedy, had the Secretary of State decided at the date of decision to grant a period of leave, would have been a grant of Discretionary Leave for 3 years, not ILR: that has been confirmed by the letter from Ms Kiss dated 8 February 2008, which states that in cases falling within the ambit of DP3/96 and related polices dealing with common law relationships, it is the Discretionary Leave policy which is applied and that policy provides for a standard period of three years Discretionary Leave. Hence whilst we are satisfied it would be appropriate to make a direction, it is for a grant of Discretionary Leave for 3 years, not ILR.
42. We add one other comment. It seems to us that the Home Office would do well to consolidate its policies on enforcement action, so as to avoid the difficulties - highlighted by this case - posed by the co-existence of DP3/96 and a parallel concession relating to enforcement action in respect of unmarried partners (a concession quite separate from what is known as the "unmarried partners' concession). The facts of this case also highlight a failure of the texts of any policy or casework instructions to be precise about what approach should be taken to persons in a "hybrid" situation of having two years of living together comprised in part of simple cohabitation as a couple and in part of cohabitation as a married couple.
43. We remind ourselves of what Laws LJ said in Mahmood: "DP3/96 is badly drafted … I hope that the Home Office will look again at the terms of [this policy], if only for clarity's sake". It seems to us, some 7 years on, not only has DP3/96 remained unredrafted but the current policy instructions on enforcement action continue to lack overall coherence and clarity. We also remind ourselves of Sedley LJ's observation in AB (Jamaica) that the continuing co-existence of DP3/96 since October 2000 causes a degree of mismatch.
44. For the above reasons, the Immigration Judge materially erred in law. The decision we substitute is to allow the appellant's appeal on the grounds that the decision was not in accordance with the law and on human rights grounds (that the decision amounted to a violation of the appellant's right to respect for family life under Article 8 ECHR). The direction we make is for a grant of Discretionary Leave for 3 years.

Signed Date

Senior Immigration Judge Storey