Public Law Solicitors

As per the article of 20 April 2012 on the statutory breach of the Secretary of State’s duty under Section 55 Borders, Citizenship and Immigration Act 2009, Duncan Lewis have initiated several challenges to the Secretary of State in this respect. However, more recently, cases have involved the misapplication of Section 55 and established case law. Even though the Secretary of State claims to have applied Section 55 and considered the best interest of children involved in accordance with relevant case law when issuing a decision to refuse leave, it is clear that she has repeatedly erred in the application of the law itself.

In one particular case, the Secretary of State considered other factors such as our client’s action to stay in the UK without leave to remain, and unlawfully held that against the consideration of the best interest of our client’s child, who was at the time an 8 year old child, having lived in the UK her whole life and developed her private and family life in school and with her other family members in the UK. The impact and consequence of our client’s child’s removal from the UK should be of ‘primary consideration’, in accordance with ZH (Tanzania), notwithstanding our client’s poor immigration history.

Following the misapplication of case law in this respect, challenges have also been made to the Secretary of State’s application of the test under Section 55 and the difference between the test on interfering with Article 8 and breaching the Secretary of State’s positive duties under Section 55. Further, we have argued that the failure to issue notice of removal to our client following refusal of leave disproportionately affects our client’s children’s Article 8 rights.

The test under Section 55

The Secretary of State may lawfully interfere with one’s right to private and family life under Article 8 on the balance of whether the decision is in accordance of the law and in the interest of the state, whereas there is an absolute duty on the Defendant to safeguard and promote the welfare of children involved who are in the UK when making a decision in relation to immigration matters under Section 55.

The Secretary of State has on a number of cases used the balancing act under Article 8 when reaching her unlawful conclusion that on this basis, the duty imposed upon her under Section 55 has been properly discharged. Often, the Secretary of State neglects to consider or even comment on whether the decision is safeguarding or promoting the welfare of the child involved in the case.

These are some of the common issues faced by overstayer applicants with children in the UK, exacerbated by the fact that when a decision is made to refuse leave to remain to these applicants, they do not have a right of appeal against this decision unless and until a removal decision is made for their removal from the UK.

With children this has a specific effect on their ability to study particularly those seeking to go on to higher education and or wishes to travel overseas on school trips. It is clear that the Courts have yet to grasp that for children not having status in the United Kingdom is a stigmatism that children should not have to live with unless there is absolutely no other alternative. The simple solution of the Secretary of State is that they should leave the United Kingdom whether they can afford to or not, and whether there has been proper consideration of their case.

Notice of removal

When an overstayer applies for leave to remain within the United Kingdom, a decision to refuse this application is not an immigration decision against which there is a right of appeal to the Tribunal. A removal decision under section 10 of the Immigration and Asylum Act 1999 is an immigration decision against which there is a right of appeal: section 82(2)(g).

The Court of Appeal in Daley Murdock v SSHD [2011] EWCA Civ 161 held that there is no obligation on the Secretary of State to issue a removal decision to an overstayer at the same time leave is refused. However it was considered that there may be a need to achieve timely decisions where children are involved, which reflects on the spirit of Section 55.

In an on-going Judicial Review case the Secretary of State revealed that a policy was brought in on 13 February 2012 to deal with cases in which notice of removals are requested. In this particular case, the policy was cited as follows:

“The policy takes into account the Defendant’s duty to ensure immigration functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, any direct costs in supporting the applicant and dependents which is being incurred by the UK Border Agency or local authorities and to other exceptional matters. This policy applies where a person:

1. has made a valid but out of time application for leave to remain which has been refused; and


2. did not receive a removal decision when the application for leave was refused: and


3. has failed to leave the United Kingdom voluntarily; and


4. has requested in a PAP, or letter before action, that a removal decision is made.

If the person fulfils the above requirements the Defendant will go on to assess their case against the policy and will serve a notice of removal if one of the following applies:

1. the refused application for leave to remain included a dependant child under the age of 18 who has been resident in the UK for 3 years or more; or



2. the applicant has a dependant child under the age of 18 who is a British citizen; or


3. the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 1 of the Children Act 1989); or


4. there are other exceptional and compelling reasons to make a removal decision at this time.”

In our case, the Secretary of State applied the above policy and conceded our client’s claim. A request has been made to the solicitors for the Secretary of State for a copy of this policy however we have not received a copy of the same at the time this article was written.

It is nevertheless perplexing how the Secretary of State has continuously failed to consider the best interest of children in immigration cases by erroneously applying the law and her own policy. The actions of overstayers should not be condoned; however these challenges to the Secretary of State should be of grave concern as they involve the protection of innocent children who can in no way be held responsible for their parents’ actions.

It is clear that the law must protect children with all its power where the state continues to punish them for the perceived sins of their parents.

By Iylicia Weston