Applicability of section 55 of the 2009 Act

AJ v Secretary of State for the Home Department [2011] EWCA Civ 1081 (21 September 2011)

This Court of Appeal case was heard on 21^st September 2011.

Facts of the case

The appellant, AJ, appealed against the decision of Ouseley J refusing his application to quash the Secretary of State for the Home Departments (herein after referred to as the SSHD) decision to refuse him leave to remain in the UK. AJ had submitted an application on the basis of article 8 right for a private and family life under the European Convention on Human Rights. AJ was not granted a right of appeal and therefore the case proceeded to the Administrative Court under an application for Judicial Review. The application was refused on 18^th October 2010.

AJ is a Nigerian national who entered the UK lawfully on a visitor’s visa. He thereafter switched into a student visa valid for 12 months, expiring in 1990. He began a relationship with a British national known as JO and they have three children together, all of whom are British citizens. The children were born in 1990, 1991 and 1994 and the relevant child for the purpose of this case is Godwin who was aged 16 at the time of the SSHD’s decision.

AJ was subsequently convicted of shoplifting and was deported to Nigeria. He thereafter returned to the UK clandestinely in 1997 and has remained here since. AJ was granted discretionary leave to remain on 5^th July 2011. Therefore, this appeal became ‘academic’ and was not to be determined.

Reference in the case was made to the Supreme Court decision in ZH (Tanzania) v Secretary of State [2011] UKSC 4 and section 55 of the Borders, Citizens and Immigration Act 2009. AJ was granted permission to appeal on 17^th June 2011. Sullivan LJ stated:

"It does seem to me desirable that the impact of section 55 of ZH should be considered across the board."

Section 55 of the 2009 Act

This provides as follows:

1. Section 55 of the 2009 Act provides:

"(1) The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2) The functions referred to in subsection (1) are—

(a) any function of the Secretary of State in relation to immigration, asylum or nationality;

(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c) any general customs function of the Secretary of State;

(d) any customs function conferred on a designated customs official.

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."

In the case of ZH, the court confirmed that the SSHD and the Tribunals would have to address section 55 in their decisions.

When this case came before the court, it was submitted that it should not be heard as the appellant AJ, had already been granted discretionary leave to remain in the UK. However, it was argued by the appellant’s representatives that the legal issues which had arisen including the applicability of section 55 should be determined.

The SSHD representative conceded that the duty under section 55 of the Act applied to all immigration, asylum and nationality functions and not only when making an appealable decision to remove. ‘It applies when making a non-appealable decision refusing leave to remain’.

On the facts of this case, the SSHD representative conceded that they had not considered the best interests of AJ’s child, Godwin when refusing AJ’s application for leave to remain and as a result of that failure, the SSHD had granted discretionary leave to remain for AJ.

As the legal points had been conceded, the court went on to allow the appeal and to quash the SSHD’s decision.

29^th September 2011