United Kingdom: Rules And Rights

Last Updated: 17 June 2011
Article by Alexander Cooray

An applicant who applies for leave to remain in the United Kingdom, but is refused, will only be able to appeal the decision if at the time that they applied for the leave they already had leave of some sort, unless the Home Office go on to make a decision to remove the applicant (which gives rise to a separate right of appeal).

The Home Office have recently adopted a practice where an application has been refused of stating that a decision to remove will follow later. There may be a good reason for this practice, which allows failed applicants who were already here unlawfully, to leave under their own steam without the expense and bureaucracy involved in a forced removal. However, it has led to real difficulties for those convinced that the refusal of leave was mistaken. They have to remain in limbo, unable to work (or receive benefits) until such time as the Home Office decide to remove them.

The recent decision in Mansoor v Secretary of State for the Home Department [2011] EWHC 832 (Admin) is interesting. It demonstrates that – following the many (largely unsuccessful) cases in which claimants argued that if the Secretary of State refuses an application she should make a decision to remove them at the same time (thereby securing rights of appeal), culminating in Daley Murdock v Secretary of State for the Home Department [2011] EWCA Civ 161 (23 February 2011) – the Administrative Court may in the right case be willing to make substantive findings on the refusal of leave itself, bypassing the need for an appeal.

The Facts

The Claimant sought Judicial Review of the Secretary of State for the Home Department's refusal to grant her indefinite leave to remain in the United Kingdom in order to continue to reside with her husband and children. The couple had five adult children and two minor children, the three eldest with ILR and the four youngest with British citizenship. The Claimant had been granted two years' leave as a spouse, but by the time she came to apply for ILR, her husband had been made redundant. The application was refused because the couple were now reliant on public funds.

The Claimant appealed to the Tribunal, unsuccessfully. Then she made a further application, relying on Article 8 and the best interests of the children. That was refused. No right of appeal obtained, as the Claimant had had no leave to remain at the time she made her application. The Claimant instead sought Judicial Review, challenging the decision itself and also challenging the failure to make an enforcement decision which would have created a right of appeal.

The Home Office's decision

Blake J summarises the relevant passages of the decision letter at paragraph 18 of the Judgment. The reasons given included the following:

  • The children under 18 were of an adaptable age who could adapt to life in the Yemen.
  • There are no insurmountable obstacles to the husband and children returning to the Yemen and there will be no problems in doing so.
  • Contact can be maintained by visits and modern methods of communication.
  • The Article 8 decision was justified in the interest of maintaining immigration control.

Findings

Right of appeal

Blake J considers at paragraph 26 of the Judgment that the right of appeal issue was 'no longer live... in the light of the recent guidance of the Court of Appeal in the case of Daley-Murdock...' and the claim did not succeed on that basis. However, opinion is divided on this; my own view remains that in the right case, there would still be an argument to be made on the reasonableness of delay in making an enforcement decision.

In any case, however, and interestingly, having found that there was nothing in the right of appeal point, Blake J had no hesitation in undertaking consideration of the substantive arguments relating to whether the Secretary of State's decision was correct under Article 8 ECHR.

Proportionality

At paragraphs 34 and 35 of the Judgment, Blake J reaffirms the point he had previously made in LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC) that immigration control is not itself a legitimate aim:

'The terms of the immigration regulations are not themselves a legitimate aim within the context of Article 8.2, but as has been repeatedly pointed out maintaining the integrity of our system of immigration control is a means of protecting the economic well being of the country and may thus justify an interference with family life' [paragraph 34].

'However the terms of the immigration rules are not a legitimate aim in their own right. Family life is not to be interfered with to protect the Immigration Rules and their numerous requirements. A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim' [paragraph 35].

He goes on to find that even in the interest of protecting the economic wellbeing of the country, it may be disproportionate to interfere with an applicant's Article 8 rights:

'The mere fact that a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that otherwise to be respected' [paragraph 35].

The quality of decision making

Following on from that point, the Judgment is overtly critical of the UKBA's approach in treating a breach of the Immigration Rules as sufficient per se to render proportionate an interference with Article 8 rights:

'Non compliance with the Immigration Rules is the starting point for human rights analysis, because if you can comply with the rules you do not need to rely on human rights to remain; it is not the end point. The Rules themselves as Lord Bingham has pointed out in Huang, are not the source of balance between the public interest and that of the individual' [paragraph 37].

'It is thus misdirection for the decision maker to state as in this case, the policy of the immigration regulations justifies interference with family life. It would be of considerable benefit if decision-makers grappled with that point in the future' [paragraph 38].

The tenor is of a Judge expressing frustration at the UKBA's failure to respond to developing jurisprudence. This is surely right – the UKBA's decision in this case failed to take account Blake J's own findings in LD on what constitutes a legitimate aim; his findings in the same case on 'modern methods of communication'; and the Judgment of the Supreme Court in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 (25 June 2008) on 'insurmountable obstacles'.

One senses his frustration not only at the decision in this case, but in the persistent, apparently wilful, failure to properly apply the case law as it develops.

The Defendant may have sensed that the Judgment would be critical of her, for in the course of proceedings she indicate that she would now grant the Claimant ILR. Blake J decided to authorise publication of the Judgment in spite of this.

As the Defendant had indicated that leave to remain would be granted, there was no need for a formal order. Nevertheless, Blake J stated that he would have concluded that the Secretary of State's decision was not one that was reasonably open to her.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Alexander Cooray
 
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