Public Law Solicitors

The case of SB & ABD (A MINOR) sought to challenge the legality of the Secretary of State's historical and ongoing failure to grant the Applicants further Discretionary Leave to remain in the United Kingdom, after the first Applicant had previously been granted three years of Discretionary Leave in this country.

The Queen on the application of SB & ABD (A MINOR) - and - Secretary of State for the Home Department [2015] UKUT 136 (IAC).
In the Upper Tribunal – Immigration & Asylum Chamber – 26/02/2015

Full access to the published judgement is available by clicking here.

The first Applicant originally entered the UK on 3 August 2001, at the age of just seven. She was joined as a dependant on her father’s application for leave to remain in this country.

After a delay of several years, the Home Office granted the first Applicant three years of Discretionary Leave (DL) to remain in this country, on 14 June 2010.

The second Applicant, being the daughter of the first Applicant, was born in this country on 30 May 2011.

On 11 June 2013, we submitted an in-time application to extend the first Applicant’s DL status in this country. The second Applicant was joined as a dependant child to this application.

On 8 October 2013, the Home Office refused to grant the Applicants a further three years of DL status, instead granting the Applicants just 30 months of limited leave to remain under the Immigration Rules, with a prohibition on claiming access to public funds.

Accordingly, it was asserted in Judicial Review proceedings on behalf of the Applicants, that the failure to grant them a further 3 years of DL status was unlawful, especially as the first Applicant’s father was granted a further 3 years of DL status in the UK, with complete access to public funds.

In considering the Applicants’ Judicial Review claim, the Upper Tribunal failed to accept that either Applicant had any right to a grant of DL status in the UK. The essence of this case hinges on the correct legal interpretation of the Home Office’s published policy relating to grants of DL status.

The Upper Tribunal’s decision is arguably unlawful for the following reasons:

Firstly, because the default position under the transitional arrangements of the DL policy is that an applicant granted DL before 9 July 2012 “will normally continue to be dealt with under that policy through to settlement if they qualify for it”. Dealing with an application for further leave to remain outside of the DL policy is only permissible if there have been “significant changes” within the meaning of the DL policy. The whole purpose of having the DL policy was to ensure the SSHD’s compliance with the ECHR in respect of cases which fell outside of the pre-9 July 2012 Immigration Rules, and the DL policy expressly states that where Article 8 would be breach if removal occurred, then DL must be granted. Therefore, the only rational interpretation of “significant changes” is within the context of the original grant of DL status ie. within an Article 8 context. Accordingly, the Judge erred in divorcing the DL policy from its applicable context, effectively asserting that an applicant can fail to qualify for a further grant of DL status, even if their case continues to engage Article 8 ECHR.

Secondly, because the Judge misapplied the ratio in Tesco Stores Limited v Dundee City Council in interpreting the meaning of “significant changes”, thereby erroneously permitting the Respondent unfettered discretion to decide what is or is not a significant change on a case by case basis, thereby rendering the transitional arrangements of the DL policy meaningless.

Thirdly, the Judge acted irrationally in endorsing an interpretation of “significant changes”, which results in the perverse outcome of the DL policy applying less favourably to someone who has resided in the UK continuously since the age of just seven, as opposed to someone who has only resided in the UK as an adult for a proportionately less of their life. The first Applicant’s circumstances only changed materially insofar as her private and family life in the UK has grown even stronger since her original grant of DL status, especially since the birth of her child in this country.

Fourthly, the Judge erred in holding it was neither irrational nor perverse to treat the Applicant less favourably than her father, who had only lived in the UK as an adult an for a proportionately lower part of his life. In order to be lawful, the transitional arrangements must be interpreted in a manner which does not consistently treat children less favourably than their parents.

Fifthly, the Judge erred in failing to take account of a material consideration, insofar as the Judge attached no weight whatsoever to the fact that the first Applicant ought to have been granted settled status in the UK in August 2008, by which point she had resided continuously in the UK for 7 years in accordance with the then existing Home Office policy DP 5/96, which was expressly raised in the Applicants’ Skeleton Argument. It is plainly not inappropriate to consider historical breaches of the law when deciding whether or not it is reasonable to treat the first Applicant considerably less favourably than her father, as erroneously asserted by the Judge at Paragraph 95 of his Judgment.

Sixthly, the Judge erred in asserting that the decision to deny recourse to public funds is “entirely rational”. The Judge failed to explain how this finding is compatible with the fact that the first Applicant receives even less money from her father than before, and now she has a child of her own to support. A request for a change of conditions does not amount to an important or realistic safeguard for the Applicant, in view of the fact that the Respondent has gone on record as confirming that whilst the first Applicant’s father remains in the UK, the Respondent will refuse to entertain any possibility of granting the Applicants any recourse to public funds.

Notwithstanding the Upper Tribunal’s recent refusal decision, as this claim continues to gives rise to arguable grounds raising serious and compelling issues of wider significance and public importance, an application has been submitted to take this case to the Court of Appeal, which is currently awaiting consideration.

The Applicants were represented by Duncan Lewis Solicitors’ Director of Public Law, Trevor Hatton.

About the Author

Trevor Hatton joined Duncan Lewis’ Immigration and Public Law Department in November 2012 as a Director/Head of Department and specialises in Immigration Judicial Review Claims. Trevor has been a practising immigration lawyer for a continuous period of more than eleven years, since 1 October 2001, originally graduating from the University of Warwick with a law degree in the year 1996, and subsequently passing the Legal Practice Course with a commendation at London Guildhall University, in 1999. On 23 March 2005, Trevor Hatton successfully obtained accreditation as a Senior Immigration Caseworker and Immigration Supervisor at the first sitting, under the Immigration and Asylum Accreditation Scheme, and was subsequently reaccredited under this Scheme in November 2010, also at the first sitting.