Case No: CO/5328/2012
Neutral Citation Number: [2014] EWHC 3685 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 7th November 2014

Before :

JOHN BOWERS QC
(Sitting as a Deputy High Court Judge)
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Between :

	THE QUEEN 
(on the application of SAKEENA BIBI and others)	Claimant	
	- and -		
	SECRETARY OF STATE FOR 
THE HOME DEPARTMENT	Defendant	

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(Transcript of the Handed Down Judgment of
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Sibghat Kadri QC and Rashid Ahmed (instructed by Messrs Veja & Co) for the Claimant
Jennifer Thelen (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 28 October 2014
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Judgment
John Bowers QC : 
Introduction
1.	The Claimants are Sakeena Bibi the wife of Mr Muhammad Farooq and his children Abuhuraiyarth Farooq born on 23 December 1999 and twins, Haneen and Harmin Farooq born in June 2003. They seek to challenge the Secretary of State’s decisions of 23 February 2012, 19 November 2013 and 6 January 2014 (the “Decisions”) refusing to grant them indefinite leave to remain (“ILR”) pursuant to their applications under paragraphs 319E and 319J of the Immigration Rules but instead granting them discretionary leave to remain until 23 February 2015. This put them on a path to settlement (following a further three-year period of discretionary leave (“DL”)). 
Factual Background
2.	On 28 August 2006 Mr Farooq was granted entry clearance as a work permit holder and the Claimants were granted entry clearance as the dependants of a work permit holder, valid until 28 August 2010. 
3.	On 26 August 2010 Mr Farooq applied for further leave to remain and the Claimants applied for further leave as his dependants.  The Claimants’ applications were returned as invalid as the wrong application form had been used in circumstances where the Claimants were obliged to use a specified form. Mr Farooq’s application was refused but his appeal against this refusal was allowed on 1 December 2010. 
4.	On 22 March 2011 Mr Farooq switched into the Tier 1 General migrant category and was granted further leave to remain as a Points Based System (“PBS”) migrant valid until 22 March 2013.  
5.	The Claimants did not apply for further leave as the dependants of a PBS migrant. Their leave had expired on 28 August 2010 and they did not obtain an extension of leave to remain in the United Kingdom.  They were overstayers  but Mr Kadri QC has stressed that the Defendant did not write any warning letter to them and he went so far as to say that they were living in the UK with the tacit agreement of the Secretary of State.  He said this was a unique case.
6.	On 2 December 2011 Mr Farooq applied for ILR as a Tier 1 (General) migrant along with the Claimants as his dependant family members.  
7.	Mr Farooq’s application was granted but his wife’s application was refused as she did not meet the requirements of paragraph 319E (c) of the Immigration Rules. The application on behalf of the children was also refused as they did not meet the requirements of paragraph 319J (c) of the Immigration Rules. The Claimants were however granted DL under the policy which was then in force and they are now set on a path to settlement, assuming their circumstances remain the same. 
8.	The Claimants now seek judicial review of the Decisions. On 7 September 2012 Mr Justice Collins granted permission to apply for judicial review.  He made the following observations: 
“While the Rule does seem to make the claim difficult it is I think arguable that it is irrational.  On its face, the dependents of a first time grantee made [under] the points based system will never qualify for Indefinite Leave to Remain. This is to say not the least curious since there is no doubt that they are genuine dependents and in such circumstances have the same leave as the husband and father.  Why should they have to pay for expensive applications? Perhaps this is a case for discretionary Indefinite Leave to Remain”
The challenge now is not to the lawfulness of the Rules but to the exercise of discretion which resides in the Defendant. The case has been well argued by Mr Kadri QC and  Rashid Ahmed for the Claimants and Ms Thelen for the Defendant. 
9.	Following an adjourned hearing on 18 June 2013, the Defendant agreed to review the case in view of the judgment in SM and TM [2013] EWHC 1144 (Admin) which had been decided on 8 May 2013.  This review took place on 19 November 2013. The Defendant concluded:
“Having given careful and full consideration to the revised DL policy, the circumstances and evidence submitted in this case, Article 8 and S.55, keeping in mind the primary consideration of the best interests of the children, it has been decided that this case does not justify a grant of discretionary ILR and does not justify a departure from the standard limited period of DL, and, therefore, the decision of 23 February 2012 to grant 3 years DL is maintained.” 
Importantly the review decision notes that no further evidence was presented by the Claimants for the reconsideration and this lack of evidence about their position is a point to which I will return.  
10.	The Defendant considered the case of each child individually and took into account the age of the child, the level of integration in the UK, and the living requirements of the child.  She determined that there was no real evidence to suggest a specific disadvantage to the Claimants stemming from the grant of DL, rather than ILR.  
11.	In response to this, the Claimants’ solicitors wrote on 20 December 2013, claiming that the son, Abuhuraiyarth, was specifically disadvantaged in terms of an inability to undertake global study tours and student financing.  No evidence of either forthcoming tours, or a financial need, was provided either then or since.  The Defendant responded to this on 6 January 2014, noting the lack of specific evidence provided, and reasoning that the Claimants could obtain visas to facilitate travel and that other means of finance were available.  
12.	The Claimants did not obtain further leave in line with Mr Farooq as the Points Based System dependant family members. Accordingly, the Claimants were not entitled to ILR pursuant to the Relevant Rules.
13.	The Defendant denies that there is anything irrational about the operation of the Relevant Rules in their application to the Claimants. She points out that the Claimants could have regularised their position, and had they chosen to do so, that they could have “switched” and applied for further leave as the dependants of a PBS migrant before the application was made on 2 December 2011. For whatever reason they did not do so. 
Discretionary Leave Policy
14.	The Defendant’s DL policy was revised following the judgment in SM.  The DL policy provides for longer periods of stay most materially as follows:
“There may be cases where a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child, (and any countervailing considerations do not outweigh those best interests), or because there are particularly exceptional or compelling reasons to grant leave for a longer period (or ILR)….  
In cases involving children, decision makers must regard the best interests of the child as a primary consideration (although not necessarily the only consideration) when deciding the duration of leave to be granted.  Whilst the expectation is that in most cases a standard period of 30 months (2.5 years) DL will be appropriate, there may be cases where evidence is provided showing that a longer period of leave (or ILR) is required in order to meet the best interests of the individual child under consideration.
…
In all cases it is on the applicant (or their representative) to provide evidence as to why it is in the best interests of the child to be granted a period of leave that is longer than the standard period of DL.” 
The lack of evidence in this case both before the Defendant and now before the court is noteworthy.
15.	The Defendant could only determine her decision based on the evidence provided, and thought this was not a case where a grant of discretionary ILR was justified.  Her reasoning in so doing, as set out in the 19 November 2013 and 6 January 2014 decision letters (and accompanying notes), is as follows:
-	evidence is required to depart from the standard period of leave;
-	that evidence must demonstrate that ILR is required to meet the best interests of the child;
-	the onus is on the applicant to provide evidence as to why it is in the best interests of the child to be granted a period of leave that is longer than the standard period of DL;
-	the Claimants‘ DL, which is valid until 23 February 2015, is extendable for another three years, and would lead to a grant of ILR upon completion of six years residence in the UK under the DL policy;
-	following the grant of DL the Claimants are entitled to work, free education and health care and social services; 
-	based on the evidence provided, there was no evidence to suggest that the decision to grant DL as opposed to ILR specifically impacts the lives of any of Abuhuraiyarth Farooq, Haneen Farooq or Harmain Farooq adversely  in that the children are attending school and prospering; 
-	there is no evidence that, as a result of being granted DL rather than ILR, the Claimant children’s social integration has been disturbed, or that distress or anxiety has been caused;
-	there is no information or evidence, with respect to Mrs Sakina Bibi, to demonstrate that a grant of DL rather than ILR would adversely affect her private or family life or that of any of her children or her husband, or that her circumstances are so exceptional and compassionate that they warrant departure from the standard grant of DL; 
-	no evidence of either a “global study tour” scheduled at Abuhuraiyarth’s school or his inability to participate in a tour have been submitted;
-	the children’s current immigration leave does not prohibit them from seeking a visa for overseas travel.  Obtaining a visa for a study tour is not uncommon, in particular given the large number of international students studying in the UK;
-	no evidence has been provided demonstrating that Abuhuraiyarth will be in need of a student loan to undertake further studies, or that he might not be able to access other forms of financial support; and
-	having regard to the permissible aim of maintaining effective immigration control, granting DL rather than ILR is proportionate.  
The law
16.	It is common ground that the defendant has power to grant leave outside of the Immigration Rules. In the case of R (Munir) v Secretary of State for the Home Department [2012] UK SC 32, Lord Dyson said (at paragraph [44]): 
“In my view, it is the 1971 Act itself which is the source of the Secretary of State's power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain: see paras 4 to 6 above. The language of these provisions, especially section 3(1)(b) and (c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even where leave would not be given under the immigration rules.” (my emphasis)
17.	In SM, Holman J considered that the then Discretionary Leave policy document dated 27 October 2009 and instruction was not compliant with section 55 of the Borders, Citizenship and Immigration Act 2009 (see paragraph 24 to 28).  At paragraph 40 he states: 
“…the policy and instruction document later precludes the decision maker from case specific discharge of the duty under section 55, as explained in the jurisprudence, when considering duration ”
and at paragraph 42:
“…In my view the effect of the language of the policy and instruction document as a whole is to preclude the decision maker from even considering an applicant, whether adult or child, as being eligible for ILR until he or she has completed at least six years of DL.  The use of the word “normally” is explained by the reasons I have described and does not of itself admit of any exception or qualification in relation to children”. This serves to emphasise the need for each case to be decided separately.  ”
18.	In R (Mohammed) v SSHD [2014] EWHC 98 (Admin) (at para 32) Lewis J stressed the discretionary nature of the power when he said: 
“That submission [by the Claimants] reads as if the Defendant is in some way obliged to grant indefinite leave to remain unless there are positive reasons for refusing it.  In fact, that is not the position.  The Defendant is entitled to adopt a policy whereby those who do not have leave to remain in the United Kingdom may be granted discretionary leave to remain because of the particular circumstances of the individual or his family.  The Defendant is also entitled to adopt a policy whereby an individual will generally need to complete a qualifying period of six years pursuant to the grant of discretionary leave before being eligible for the grant of indefinite leave.  That is a lawful, rational policy.”
19.	The proper approach to the interest of the child may be seen most generally in ZH (Tanzania) v SSHD [2011] 2 WLR 148 at paras 29 and 33. In cases involving children, it remains appropriate to balance any marginal benefit attaching to a grant of ILR against the Defendant’s interests in efficient and effective immigration control.  Recently, in R (Alladin) v SSHD [2014] EWCA Civ 1334, the Court of Appeal specifically considered the question of a grant of DLR, rather than ILR, to the Claimant and her family members (including children albeit younger than those in this case).  There, as here, the Claimants alleged that the grant of DLR was unlawful because they were in breach of the Defendant’s duty under Section 55.  The Claimant pointed specifically to the benefits attaching to ILR in terms of school trips (as they did here).  The Defendant refused to grant DLR, stating: 
“The Secretary of State must ensure that the grant of ILR does not become a means whereby those who cannot meet the Immigration Rules proceed immediately into the permanent category without being able to review their circumstances at a later date to determine whether a future grant of leave is still appropriate.  To grant ILR immediately would discourage the use of lawful routes to residence and undermines the SSHD’s ability to manage migration in a manner which she considers to be in the best interests of society as a whole.  The SSHD considers that the public policy considerations could only be outweighed in an exceptional case.” (at para.27)
20.	The Court of Appeal agreed, stating:
“There can, in my judgment be no doubt that the Secretary of State is entitled in principle to adopt a staged approach to settlement. Even where children are the applicants, it does not follow that the Secretary of State is bound, on a first application, to grant ILR.  The considerations outlined in the evidence of [the Secretary of State] amount to factors which are worthy of consideration, and deserve to be placed in the balance after the best interests of the children have been considered.  It follows that an applicant who wishes to persuade the Secretary of State to grant her leave for a period longer than that provided for by the staged settlement policy has to do more than point to the fact that she is a child.” (per Floyd, LJ) (at para.59).
The Claimants’ Challenge
21.	The Claimants now maintain that the Decisions here are “unreasonable/unlawful/irrational” and “not in the best interests of the Claimant children” based on a failure to properly consider a number of factors and in particular: requirement for visa for future studies; potential student loans; a failure to consider the length of time they have already spent in the UK; and a failure to consider the fact that granting DL has caused the children uncertainty, distress and anxiety. 
22.	They rely on the Claimants’ immigration history and family circumstances in particular that they entered the UK lawfully as the dependents of a work permit holder; the children were settled in the UK and in full time education; they only became overstayers as their initial application for further leave to remain was not considered because of an invalid application and that the Claimants wish to live permanently in the UK. 
23.	They emphasise that until the Claimants are granted ILR, they will be subject to uncertainty as to whether they can remain as a family in the UK together indefinitely. Mr Kadri said that I should take into account that there was no jumping of the queue involved with these Claimants and the overstaying was not a question of substance but of form. He stressed that the uncertainty is causing anxiety to the Claimants especially the boy who is a GCSE student. It was noteworthy that if he went to university he would not gain a student loan under the Education Support Amendment Regulations 2011 because he was not settled. This is an area of the case which would have benefitted from some evidence about the boy’s intentions and the likelihood or otherwise of his arranging other finance than that of the Student Loans Company in response to the Defendant’s assertions that funding would be available. There was however none at all either before the Secretary of State or before me.  
24.	The Claimants also said that the Defendant is indeed given a discretion on the basis but that it must be exercised with a modicum of intelligence, common sense and humanity (see paragraph 7 of Forrester v SSHD [2008] EWHC 2307).   The Claimants submit that there is no reason in their case for not exercising discretion in their favour. They rely on Sullivan J’s well known dictum:  “It is one thing to say that one should have a fair and firm immigration policy, it is quite another to say that one should have an immigration policy which is utterly inflexible and rigid and pays not the slightest regard to the particular circumstances of the individual case.” (paragraph 13 of Forrester). 
25.	Mr Kadri also said that there was no point making the family wait because it is “certain”  that there will be no changes in their circumstances in 5 years. It was submitted that the Defendant’s decision to grant DL effectively leaves the Claimant mother and the Claimant children in limbo and interferes with or prevents their proper social integration in the UK. I do not believe that there is any such certainty as to the future.
26.	It is submitted further on behalf of the Claimants that no reasonable person properly taking into account the Claimants’ immigration history and length of residence in the UK (the fact that the Claimant children are well established and settled in the UK) would not conclude that this case is compelling/exceptional to warrant the grant of discretionary ILR. 
The Defendant’s submissions 
27.	The Defendant on the other hand contends that the Decisions treat the best interest of the children as a primary consideration and take fully into account the decision in SM. 
28.	In effect Ms Thelen makes the same submission as did Ms Olley successfully in R (Alladin) v SSHD, at para 54 that “[t]here was no evidence of any detriment suffered by [the claimants] as a result of grant of a period of DLR as opposed to an immediate grant of ILR”.
29.	Ms Thelen then claims that there was a careful balance struck between the needs of the children and the need to maintain immigration control. She further disagreed with Mr Kadri’s suggestion that that this was a “unique case” and said that the Immigration Rules do not have a sliding scale of fault so that there was no such thing as a technicality which could in effect be ignored. The important thing was that they did not follow route to residence. I do not consider it necessary to decide the matter in the present case but I do not accept that there is no fault so slight that it cannot weigh only a little in the balance to be struck by the Secretary of State. To that extent there is a sliding scale or spectrum of fault.
30.	Further it was she said important to consider the  exiguous evidence before the Defendant and that one does not know whether things will change. There was just one paragraph in the Claimants’ letter about the possibility of school trips and this was the sum of evidence of prejudice put in by the Claimants. She said finally that even if I was against her on the generality I should make no order as a matter of discretion because the Claimants could put their case again in a few months.
Discussion
31.	There is clearly a wide discretion in the Defendant whether to grant leave to remain and if so for how long such leave should be. The Claimants have to demonstrate irrationality in the decision making process. I now deal with the particular (and few) issues which the Claimants say were not considered properly by the Secretary of State.
Study Tours
32.	No evidence has been provided that this is a real detriment for the Claimants (in particular the son) with respect to the global study tours. It is not suggested that any are on the horizon which he is likely to take. Further, as acknowledged in the Decisions, there is no reason why visas could not be obtained to allow Abuhuraiyarth to participate in the study tour.  Floyd LJ dismissed this argument in R (Alladin):
“In the case of Ms Alladin, the only specific respect in which it was suggested that the welfare of the children would be better protected by a grant of ILR, as opposed to DLR, was “hassle” in connection with the need to obtain visas for school trips.  That, as it seems to me, is more of a problem for the adult applicants than it is for the children.” (at para.60)
33.	I accept that due to the Claimant children’s immigration status (DL) they will always have to apply for a visa for the country they would wish to visit either with their school or parents; they will be subjected to additional costs. Mr Kadri suggested I take judicial notice that children may go on school trips and I do so but I am not prepared to go further and accept that there is inevitably prejudice to the particular Claimant in his going on such trips without evidence that he was in fact proposing to do so and what in practice that detriment would be. More importantly, I believe that the Defendant took this matter into account insofar as there was an assertion about it and that her conclusion was not irrational.
Student Finance
34.	No evidence has been provided that a real difficulty will arise for the Claimants with respect to student loans and this would arise only in a few years time.  The Claimants’ case would have benefitted in this respect from evidence about the parents’ means. As highlighted in the 6 January 2014 Decision Letter, alternative means of student finance are available.  
Uncertainty
35.	The Claimants maintain that granting only DL provides “uncertainty, distress and anxiety”.  I take this into account as indeed did the Secretary of State but again note that no specific evidence of this has been provided.  
Conclusion
36.	In these circumstances I am satisfied that there is nothing unreasonable or irrational about the Decisions of the Defendant in this case. In the circumstances, the Defendant’s decision to grant DL, based on the Claimants’ circumstances, rather than ILR, was a lawful decision. 
37.	I therefore refuse relief and award costs to be assessed on as standard basis in favour of the Defendant. I would ask the parties to draw up an Order.