The claimant complained that the respondent when granting her a time limited leave to remain only, had by making her immigration status incompatible with that of her five children failed to comply with her obligations under the 2009 Act. The defendant had issued a supplementary decision directly addressing section 55, but the claimant said that this had been merely an ex post facto attempt at justification.
Held: ‘the substance of the Secretary of State’s duty pursuant to section 55 was discharged by the decision of 5 November 2012 to grant the Claimant five years leave to remain pursuant to the staged settlement policy. In any event the decision letter of 3 October 2014 was a free-standing reconsideration of the issue and has rendered these proceedings academic. The relief sought is therefore refused. ‘
This is a clear case of the substance of the section 55 duty being discharged by the granting of five years leave to remain to the Claimant under the rules in circumstances where her children’s status was not in question and there is nothing to suggest that there are factors showing detrimental impact upon the children which require consideration as to whether indefinite leave should be granted: ‘an applicant who wishes to persuade the Secretary of State to grant 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.’
The court summarised the effect of the Alladin case: ‘i) It is sufficient if the substance of the duty under section 55 was discharged and the decision maker does not have to refer explicitly to the statute or guidance: paragraph 51.
ii) Having a staged route to settlement as opposed to immediate grant of indefinite leave to remain is lawful: paragraphs 53 and 59
iii) Even where children are applicants (which is not the present case), it does not follow from the duty under section 55 that the Secretary of State is bound, on a first application, to grant indefinite leave to remain: paragraph 59
iv) ‘An applicant who wishes to persuade the Secretary of State to grant her leave for a period longer than that provided by the staged settlement policy has to do more than point to the fact she is a child’ : paragraph 59
v) The practice of issuing supplementary decision letters following an initiation of an application for judicial review is not necessarily coloured by the existence of the judicial review claim and can be a ‘free-standing reconsideration of the case’ : paragraph 64
vi) Where indefinite leave to remain was not even requested by the Claimant this is a compelling reason for not granting it: paragraph 71′
David Casement QC
[2015] EWHC 7 (Admin)
Bailii
Borders, Citizenship and Immigration Act 2009 55, Council Directive 2004/83/EC 24, Immigration Rules 339Q(i)
England and Wales
Citing:
Cited – TS, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Oct-2010
The claimant had sought asylum as a child, declaring that he had not applied for asylum elsewhere. His fingerprints were matched to an applicant in Belgium.
Held: Wyn Williams J construed section 55 and the statutory guidance referred to in . .
Cited – Alladin, Regina (on The Application of) v Secretary of State for The Home Department CA 16-Oct-2014
The court was asked whether the decisions of the Secretary of State to give limited (discretionary) leave to remain as opposed to indefinite leave to remain are unlawful because they were given in breach of the Secretary of State’s duty under . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 12 November 2021; Ref: scu.540508
