Several claimants challenged the withdrawal by the respondent of the seven year child concession policy, under which families who did not have leave to be in this country, but with children who had been in this country for 7 years were, save in exceptional circumstances, allowed to remain here. In each of these cases, it was claimed that the policy must continue to be applied to the applicants, who made their applications for leave to remain to the Secretary of State after the policy had been withdrawn.
Held: The appeals failed. The Secretary of State had acted lawfully in withdrawing DP5/96 and in determining the transitional arrangements that would apply. The Secretary of State was entitled to review her policy (such as that contained in DP5/96) and to change or revoke it whenever she considered it to be in the public interest to do so. They rejected the argument that the decision to withdraw the policy was irrational or unfair and held that the interests of the children were adequately addressed by article 8 of the Convention.
The appellants argued that the policy withdrawal by the defendant amounted to a statement of a change in the immigration rules, and should have been placed before Parliament. Stanley Burnton LJ rejected the argument saying: ‘In my judgment, Mr Malik’s submission that the withdrawal of DP5/96 amounted to a change in the immigration Rules proves too much. If the withdrawal of DP5/96 was such a change, it necessarily follows that DP5/96 itself should have been laid before Parliament in accordance with section 3(2). It was not. On this basis, DP5/96 was unlawful, and its withdrawal was lawful since it brought to an end the application of an unlawful policy.
It is therefore unnecessary to decide whether or not DP5/96 should have been laid before Parliament pursuant to section 3(2) of the 1971 Act. It is sufficient to say that it seems to me to be well arguable that it was indeed a rule ‘laid down by [the Secretary of State] as to the practice to be followed . . for regulating the entry into and stay in the United Kingdom of persons required . . to have leave to enter.’ A direction that in defined circumstances a discretion conferred on the Secretary of State is normally to be exercised in a specified way may well be such a rule.’
Thomas, Mooer-Bick, Stanley Burnton LJJ
[2011] EWCA Civ 814
Bailii
Immigration Act 1971 3(2)
England and Wales
Citing:
Appeal from – Abbassi and Others, Regina (on The Application of) v Secretary of State for The Home Department Admn 12-Nov-2010
Each claimant sought judicial review of a decision of the respondent to refuse them leave to remain. They said that when deciding whether to grant leave, the defendant should have afforded the claimants the benefit of the Secretary of State’s seven . .
Cited by:
Appeal from – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Lists of cited by and citing cases may be incomplete.
Immigration, Constitutional
Updated: 02 November 2021; Ref: scu.441868