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DP5/96 _ Recent Decisions

The seven year concession

Mine & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2337 (Admin) (09 September 2011

This case was heard at the Administrative Court on 9th September 2011.

Facts of the case:

The claimants consisting of the mother, father and two adult sons are all nationals of Guyana. They applied for indefinite leave to remain in the UK which was refused by the Secretary of State for the Home Department (the defendants). The claimants argue that the defendants, in considering their application for indefinite leave, should have applied the Deportation Policy DP5/96 (otherwise known as the Seven Year Child Concession) to their case and that the decisions reached by the defendants was unlawful and contrary to S.6 of the Human Rights Act 1988.

The father (claimant) initially arrived in the UK in March 1995 on a six months visitor’s visa. He subsequently returned to Guyana in June 1995. The mother later arrived in the UK on a 6 months visitor visa in June 2000 with their sons one of whom was aged 7 at the time. They remained in the UK since then overstaying on their leave. The father also joined the UK shortly after and has remained since.

The claimants built a private and family life in the UK with a social support network of friends. The father successfully completed ESOL courses here. The claimants then applied for indefinite leave to remain in November 2008.

Legal Framework

In February 1999, the Under Secretary for the Home Department had given notice of the revision of the DP5/96 policy. It provided that removal would not normally be appropriate where there was minor children and families living in the UK for 7 years or more. The Home Office then issued a policy modification certificate stipulating that where a child has come to the UK at an early age and has accumulated 7 years residence, enforcement action should not normally be taken. In the case of A v SSHD [2008] EWHC 2844 (Admin), it was held that there was an express presumption against removal and in favour of indefinite leave to remain. However, certain factors could trigger removal such as

a)      The length of residence in the UK

b)      The delay in the consideration of any representations made or delay in removal

c)       The age of the child/children

d)      Whether children were born at a time the parents had leave to remain

e)      Whether return to country of origin would cause extreme hardship for the children or put their health at risk

f)        Whether they parents had any criminal convictions or undesirable behaviour (deception)

On 9th December 2008, The Immigration Minister announced the withdrawal of the policy stating that the original purpose of the policy had been overtaken by the Human Rights Act and relevant changes to the Immigration Rules. The residence of the child in the UK was still an important factor to consider when evaluating whether removal would be appropriate in accordance with the ECHR. Transitional arrangements were also put in place and it was acknowledged that there would be existing cases where the policy was likely to still apply namely;

-          Where there were ongoing appeal cases where policy had already been applied

-          Where the Tribunal has directed the UKBA to consider the policy

-          Where the UKBA are challenging an appeal allowed by the Tribunal

-          Where UKBA have acknowledged in writing an application already made

-          Where there are enforcement cases where UKBA have initiated the process of considering the policy prior to its withdrawal

Conclusion

The Court made clear that there is a presumption against removal but that this was rebuttable and was to be applied on a case by case basis. The Judge accepted that for this case, the application of the policy would have result in indefinite leave to remain for the claimants. However, the Judge went on to state that, he did not accept that the claimants made an application for consideration under the policy before it was withdrawn on 9th December. The application they made (of which there was no copy) was dated 24th November 2008 however, the form used suggested it was one which was available as at 14th January 2009 (even though the form applied to applications made after 27th November 2008).  The form specified a warning stating that it would be invalid if the specified fee was not paid. The claimants had not made a payment with their application. Regulation 21(1) of the Immigration and Nationality (Fees) Regulation 2007 provides that an application which is not accompanied by the prescribed fee is invalid.

The claimants representatives argued that the UKBA had acknowledged the application in writing before the withdrawal of the policy (in the letter dated 23rd December 2009) which stated an application for leave to remain had been made outside the rules. The judge did not accept that this engaged the transitional arrangements as the application was not valid (due to the payment not being made) and the transitional arrangements only covered ‘valid’ applications. The UKBA letter stated that the application was invalid in their letter dated 9th December 2008 because a payment had not been made.  The judge stated “I do not regard it as irrational, unfair or perverse that transitional arrangements should apply to a valid application. The examples given in the transitional arrangements were not exclusive... A case where an invalid application had been made and returned cannot be properly characterised as an ‘extant case’”.

Ultimately, the Court dismissed the appeal having also considered the Article 8 rights (right to a private and family life) of the family members and finding that there would be no interference with this right if returned.

September 2011

 

 

Seven year child concession policy

Secretary of State for the Home Department v Rahman [2011] EWCA Civ 814 (15 July 2011)

This Court of Appeal case was heard on appeal from the High Court. The Court heard three cases arising from the withdrawal of the Secretary of State’s 7 year child concession policy (DP 5/96). This policy allowed families who had children that had been in the UK for 7 years to be granted leave to remain here. In the cases of the appellants, they argued that the policy should continue to apply to them although they submitted their applications after the policy had been withdrawn. The appellants in the case were Mr Rahman, Mrs Abbassi and Mr Munir- all referred to as the appellants.

DP 5/96 was originally concerned with the criteria to be applied when making a decision as to whether enforcement action should proceed against families whose children had spent more than 10 years in the UK. On 24th February 1999, an announcement was made to reduce the time from 10 years to 7 years stating that “deportation will not normally be appropriate where there are minor dependent children and families [who have been] living in the United Kingdom continuously for seven years of more” (Hansard 24.04.99 columns 309/310). The Home Office subsequently issued a policy amendment statement laying out the criteria to be considered in deportation cases involving children.

On 9th December 2008, the Immigration Minister Mr. Woolas, in a written ministerial statement announced the withdrawal of DP 5/96. Transitional arrangements were put into place where DP 5/96 cases would continue to apply for instance, where there was an ongoing appeal.

The Secretary of State, in its note to the Court in May 2011, confirmed that the withdrawal of the policy was necessary as it was ‘wholly contrary to public interest’ and ‘unfair to the many families who complied with their obligations under the Immigration Rules’.

The Court made reference to the 1971 Immigration Act and in particular section 3(2) which imposes duties on the Home Secretary namely; changes in rules are subject to Parliamentary scrutiny and may be altered if so seen fit.

The court held that, none of the appellants were aware of the 7 year child concession policy before it was withdrawn and therefore, they could not rely on it or show legitimate expectation. The question was whether the Secretary of State complied with her duties under the 1971 Act in withdrawing the policy lawfully. The Court held that she did. The Court stated that the policy could ‘operate as an inducement to enter this country fraudulently, with limited leave, and then to remain here until the seven years have expired. It would operate as an incentive to families not to seek to regularise their immigration status’. The Court concluded that the Minister was entitled to review or change policy where it was in the public interests to do so. The Court rejected the argument that the decision to withdraw the policy was irrational or that the Secretary of State had not considered the interests of the children which could adequately be addressed by article 8 ECHR.  The transitional arrangements were not applicable in the appellants’ cases.

The Court allowed the Secretary of State’s appeal and none of the families were entitled to benefit from the policy.

July 2011

 
Abbassi & Ors, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2894 (Admin) (12 November 2010)

Policy DP5/96 created a presumption against the removal of immigrants where their children had been continuously resident in the UK for 7 years.  The policy had been withdrawn by the time Mr Rahman, Ms Adams and Mrs Abbassi and their families applied for indefinite leave to remain (ILR).  They had, however, been in the UK for 7 years prior to the policy’s withdrawal.  It was irrational for the secretary of state (SSHD) to withdraw Policy DP5/96 in a manner that would prevent the families benefitting from the policy, when they had already accumulated 7 years’ residence, prior to the policy being withdrawn.

 

In enforcement cases where DP5/96 was under consideration it would remain applicable.  The general presumption that ILR would be granted for families with children of long residence, was unaffected (NF (Ghana) v Secretary of State[2008] EWHC 906 Admin)). 

 

Further, on the approach of R (A) v SSHD [2008] EWHC Admin 2844 the policy extended beyond cases in which enforcement action was being considered.  It would be irrational to distinguish between persons who had the necessary period of residence but who were not the subject of enforcement proceedings, and those with the necessary residence qualification, who were.  Had the Rahman family, who completed their 7 years in the UK 3 months prior to the withdrawal of the policy, had their claim considered before the withdrawal of DP5/96 they would have qualified for ILR.  They had an ‘accrued’ right, not merely the right not to be removed.

 

The fact that Mr Rahman and Ms Adams were unaware they had an accrued right would not negate that right.  To deny the Rahman family the benefit of DP5/96 when they had accumulated the necessary 7 years residence prior to the withdrawal of the policy, was so conspicuously unfair as to amount to an abuse of power.  In Ms Adams case, the position was even clearer.  Enforcement proceedings had begun so the Adams family was entitled to ILR, unless the individual merits of the case required otherwise.

 

In contrast, Mrs Abbassi and her children completed their 7 years about 9 months after the withdrawal of the policy.  As such they had not accrued the same right.  The decision-making process for removal was distinct from that for ILR (Mirza v SSHD [2010] EWHC 2002).  Thus, it was not unfair or irrational that the defendant had not had applied Paragraph 395C of the Immigration Rules (which outlines procedures for section 10 removals under the Immigration and Asylum Act 1999) because she had not yet begun to decide whether to order removal (R (on the application of Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin)). 

 

Whilst ‘very weighty reasons’ were needed to justify separating a child from the community in which s/he had lived for most of his/her life (LD Zimbabwe [2010] UKUT 278 (IAC)), it was not the only consideration. The parents’ failure to regularise their position in the UK was significant, and provided a rational reason to de-prioritise the best interests of the child.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
Zoë Sutherland 
29 / 11/ 2010
 
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