SM and Another v Secretary of State for the Home Department  EWHC 1144 (Admin); (2013) PLLR 084
Immigration - Leave to remain - Children
The Defendant's Discretionary Leave policy and guidance precluded case specific considerations, as was required by section 55 of the Borders, Citizenship and Immigration Act 2009. The policy, guidance and decisions were therefore unlawful.
8 May 2013
(1) Each of the persons concerned in this case were Jamaican citizens, or persons entitled to Jamaican citizenship. The Claimants were children born in the UK to Jamaican illegal over-stayers.
(2) Each of the claims concerned applications made by children outside the scope of the Immigration Rules for indefinite leave to remain. Each Claimant had been granted discretionary leave for three years, but alleged that if the Secretary of State had properly applied section 55 of the Borders, Citizenship and Immigration Act 2009, they would, or at least might, have been granted indefinite leave to remain.
(3) Section 55 provides that when exercising functions relating to immigration, asylum or nationality, the Defendant must make arrangements for ensuring that regard is had to the need to safeguard and promote the welfare of children in the UK. The ‘Every Child Matters' guidance in relation to section 55 emphasised that decisions must be reached in a timely fashion as children cannot put their growth or development on hold.
(4) The Defendant can grant leave under the discretionary powers. The guidance for this discretionary power stated that persons should be ‘granted Discretionary Leave' where their removal would involve a breach of their Article 8 rights.
(5) The parties agreed that there were two issues essential to the case:
(i) Was the policy document and instruction capable of being read and applied in a manner compliant with section 55 and the relevant jurisprudence? If not, the policy was unlawful and the decisions taken by reference to it should be reconsidered.
(ii) If the policy could be read in compliance with section 55 and the relevant jurisprudence, did the decision maker fail to apply it in this way? If yes, the decisions ought to be reconsidered.
(6) The essence of the Claimants' argument was that each application made by or for a child for leave to remain must give specific consideration to the individual circumstances of the child applicant.
(7) HELD: The Court made clear that at each of the lower tribunal levels, it had been made very clear that the children and their mothers could not be lawfully removed from the UK, but this was a different issue as to whether they should be granted indefinite leave to remain.
(8) The Court found that the policy and instructions were not compliant with section 55.
(9) The Court considered that the language of the policy and instruction documents precluded the decision maker from considering an applicant as eligible for indefinite leave to remain until they had completed six years of discretionary leave.
(10) The language used also preluded case consideration of the welfare of children, as required by section 55. As such, it was unlawful. The Court held that even if this were not its finding, it would find that the decision maker had not given case specific consideration to the welfare of children. The decision letters were short and formal and made no reference to case specific considerations. Later letters sent after judicial review proceedings were commenced tried to rectify the situation and provide further details, but they were held to be ‘an after the event attempt to demonstrate a reasoning process which was not described, and is unlikely to have taken place an after the event attempt to demonstrate a reasoning process which was not described, and is unlikely to have taken place'.
(11) The Discretionary Leave Policy and instruction document of 2009 were held to be unlawful due to their precluding case specific considerations as to the welfare of children.
(12) This finding thus rendered each of the decisions in relation to the Claimants to be unlawful. The Defendant was ordered to reconsider each claim, properly applying section 55. The 2009 policy was held to require amendment to make it lawful in relation to children.
(13) The Court declined to offer an opinion on a new policy and instruction that had been issued on 6 April 2013, leaving it open to the Defendant to review the lawfulness of this policy.
 - Not compliant with section 55.
 - Precludes individual consideration.
 - No case specific finding.
 - Decision letters.
 - After the event rectification.
 - Conclusion.
 - Unlawful.
 - Amend 2009 policy.
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