The decision

KK (Under 12 Policy – in country implications) Jamaica [2004] UKIAT 00268


Date of Hearing : 8 April 2004
Date Determination notified:
.....23rd September 2004.....


Dr H H Storey (Vice President)
Miss J M Braybrook

Secretary of State for the Home Department



Representatives Mr J. Jones, Home Office Presenting Officer, for the appellant; Mr I Thrilling, Legal representative of Nottingham Law Centre for the respondent (hereafter “the claimant”).


1. The appellant, the Secretary of State, appeals against a determination of Adjudicator, Ms E. Dubicka, allowing the appeal of the claimant against a refusal to vary leave to remain in the UK.

2. The claimant arrived aged ten in the UK from Jamaica on 28 August 2000 as a visitor, to see his mother. He then made an in-time application for settlement as a dependant. She had indefinite leave to remain in the UK, granted in 1996 on the basis of marriage. The application was refused on 13 October 2001 under paragraph 300 (with reference to (i)(c) and (d) and paragraph 298 (with reference to (iv)).

3. The reasons for concluding that the mother had not shown sole responsibility for the claimant or that there were serious and compelling family or other considerations which made his exclusion from the UK undesirable were as follows: the claimant had lived with his grandmother in Jamaica since 1993 and there was no evidence to support a claim that she had been taken ill; there was no evidence that the claimant was in poor health or that his circumstances were unusually difficult; the evidence was that the claimant's mother had been happy to leave the claimant with the grandmother (her mother); the original evidence was that the claimant's father visited every fortnight and provided the financial support required; and that the sponsor was unemployed and had not shown she could accommodate and maintain the claimant without recourse to public funds.

4. The appeal notice to the Adjudicator raised Article 8 and also the Under 12 policy. It is a matter of some concern that despite being lodged on 23 October 2001 the appeal was not forwarded to the IAA until 3 February 2003, over two years three months later.

5. The Adjudicator found the sponsor credible.

6. In consequence she concluded that the claimant met the sole responsibility requirement, at the date of decision. Her assessment was that by that time the grandmother had relinquished responsibility and the father had taken no real responsibility for his son. We consider that this was a sustainable decision.

7. The Adjudicator further concluded that the accommodation requirement was met.

8. However she found (and indeed this was conceded by the claimant's representative) that the claimant did not meet the maintenance requirement under paragraph 298(v) of HC 395.

9. The reason why the Adjudicator did not accordingly dismiss the appeal was that she considered that “my jurisdiction in respect of a s.61 appeal is to allow an appeal if I consider the decision or action concerned was not in accordance with the law or with any Immigration Rules applicable to the case : s.21 Sch 4 of Part III of the 1999 Act.”

10. She did not consider that the decision was “in accordance with the law” in the light of the Court of Appeal judgment in D S Abdi Imm AR [1996] 148, which required the Secretary of State to apply in relevant cases applicable Home Office policy. In this case, despite the Under 12 Policy being raised by the claimant's representatives, the Secretary of State had refused to consider the claimant's position by reference to this policy. Although the Secretary of State had sought to justify this refusal in terms of it being a policy applied in entry clearance cases, in fact the policy could not be so confined. She stated:

“There existed at the date of decision the ‘Under Twelve’ policy which only required the adequate accommodation criteria to be met. The sole responsibility test does not apply. In the first paragraph it relates to entry clearance decision. However, there is a reference to waiver of an entry clearance requirement which at least suggests the policy might be considered in-country. It is ambiguous, not least as there is no overriding entry clearance requirement in country, except where there was perhaps no extant leave at date of application.”

11. The Adjudicator went on to allow the appeal “to the extent of remittal for reconsideration only, on this ground.”

12. She also allowed the appeal on Article 8 ECHR grounds. Her reasons for doing so were that she did not consider it was (within the meaning of Article 8(2)) “in accordance with the law” and secondly she considered that the decision constituted a disproportionate interference with the right to respect for family life.

13. The grounds of appeal challenge both the Adjudicator's conclusion that the decision was not “in accordance with the law” (under Sch 4 of the 1999 Act) and her conclusion that the decision was contrary to the claimant's Article 8 ECHR rights.

14. We shall deal first of all with the D.S. Abdi point. The ‘Under Twelve Concession’, the grounds submitted, has only ever applied to entry clearance cases and so it was incorrect of the Adjudicator to find this claim was submitted ‘belatedly’ at the hearing.

The Under 12 Concessions Issue
15. At the hearing Mr Jones was not able to give us chapter and verse on the history of the Under 12 concession. However, he did undertake to furnish a written statement from the Home Office concerning whether or not the Under 12 Concession had been applied in practice to “in-country’ applications. Mr Jones duly forwarded a letter from Mr Paul Summer of the Home Office IND Policy Directorate attaching guidance notes on the Under 12 Concession.

16. In this letter it we noted that the concession was withdrawn with Ministerial consent of 29 March 2003. Since the decision in this case was made on 13 October 2001 when this policy still existed, its further details are relevant to this case.

17. The letter identified the relevant guidance for entry clearance officers as being given in DSP Vol 1 Ch 14.16 and the relevant guidance for in-country caseworkers as being in the Immigration Directors Instructions (IDIs) at Ch 8 Family Members in Annex M.

18. It is perhaps best if we set out the full text of the relevant IDIs.

’12. The Under 12 Concession
Where an application is made for a child under the age of 12 to join a single parent in the United Kingdom but the provisions of paragraphs 297-313 of HC 395 are not satisfied, an entry clearance for settlement may nevertheless be granted, on a concessionary basis, provided that:

There is adequate accommodation

The “Sole responsibility” test, outlined in paragraph 5 above, should not be applied.

Although this concession does not imply a waiver of the entry clearance requirement, it should always be borne in mind when dealing with cases involving children in this age a group.

12.1 Circumstances where the concession should be withheld.
If the above requirements are met, it will be appropriate in most case to apply the concession. In the following circumstances, however, it may be appropriate to withhold the concession:

where there is professionally confirmed evidence that the parent in this country is so severely handicapped as to be incapable of properly caring for the child;

where there are one or more siblings of a higher age (see below); or

where the child’s mother is polygamously married to his father and she does not qualify to come here either as a polygamous wife under the Immigration Act 1988 or the Immigration Rules or in her own right in another capacity.

12.1 Applications involving both over and under 12
The application of the concession may give rise to difficulty where there are, in the family, children both over and under the age of 12. It is not possible to lay down rules for all cases, but the principle underlying any decision should be to preserve the unity of families and for this reason, the children of a family should be considered as a group.

Where the application of the concession would result in the admission of one or more young children and the exclusion of one or more older children, it will be necessary to consider the consequences of splitting the group. If the group is well established in its present home and it would cause no hardship to them to be excluded from the United Kingdom, the right course might be not to admit any of them, including those under 12.

If the circumstances are such that the normal application of the under 12 concession seems right for the younger children, it will be necessary to consider whether the circumstances justify admitting older children under 18.

The decision can only relate to the particular circumstances of each case, but the following considerations will be relevant:

the numbers of children on either side of the dividing line (it would not be right, for example, to allow a number of children of working age, or approaching it, to gain admission because one child under 12 is seeking admission; on the other hand, it might cause hardship to a single older child if the admission of a group of siblings under 12 were to leave him alone in his own country);

whether or not the children have been living together as a group; and

the adequacy of accommodation available in this country and the arrangements for caring for the children.

12.3 Refusal
Where it is decided that a child should not benefit from this concession, the application should be refused under Paragraphs 300 or 303, as appropriate, but the reasons for refusal should be accompanied by a covering letter giving an explanation of the reasons why the Secretary of State was not prepared to apply the concession (see guidance contained in Chapter 9, Section 1, “Adverse decisions – General Guidance”)’

19. Commenting on these the letter from Mr Summers continues:-

“The Immigration Directorate Instructions outlined the concession that Entry Clearance Officers were expected to apply but did not make clear the extent to which caseworkers should apply the concession themselves. The IDIs on the Under 12 Concession stated in the first paragraph that it was a concession that only Entry Clearance Officer ‘may’ apply and that caseworkers should not imply it ‘waived entry clearance’. Caseworkers were instructed to bear the concession in mind and have accordingly taken the concession into consideration in the past”.

On 13.10.01 when the case in question was decided the Under 12 Concession appeared in the IDIs for caseworkers to bear in mind whilst making their decisions. The Instructions stated that the Concession should not be exercised if the applicant did not satisfy the Accommodation requirement about which there may have been doubt in this case.”

20. What we glean from this letter is this. At the date of decision there existed instructions to “in-country “ caseworkers regarding the Under 12 Concession. Although framed in terms of entry clearance applications for settlement and “admission”, the very fact that they existed as instructions for in-country caseworkers indicates that it was to be borne in mind in in-country cases. Furthermore, the last paragraph directs decisions to be made under paragraphs 300 or 303 of HC 395, both of which are “in-country “ provisions. Mr Summer’s letter confirms that it was applied in practice in in-country cases.

21. Plainly, therefore, the first ground of appeal was wrong in stating that “The concession applies only to entry clearance case”.

22. It is common ground that the Concession was not considered in this case.

23. It may well be, as Mr Summers suggests, that it was not applied in this case because at that point in time it was not accepted that the claimant met the accommodation requirements of the Immigration Rules: see pages 3-4 of the Home Office Explanatory Statement dated 3 February 2003. It must also be said that the text and format of the relevant IDI does suggest that the concession is not to be applied unless the accommodation requirement is met: see the first sentence of 12.1. Nevertheless, the letter of appeal from Nottingham Law Centre dated 28 October 2001 had expressly raised the matter of the Under 12 Concession and, in such circumstances, we consider it was incumbent on the Secretary of State in his Explanatory Statement to at least explain that the applicability of the Concession had been considered but that it had been decided by reason of doubts on accommodation not to apply it. Albeit somewhat at odds with earlier passages, paragraph 12.3 of the IDI appears to enjoin that where a child does not benefit from this concession the reasons for refusal “should be accompanied by a covering letter giving an explanation of the reasons why the Secretary of State was not prepared to apply the concession...”

24. In any event, the Adjudicator found that at the date of decision the accommodation requirement was met and the Secretary of State has not issued a respondent’s notice or made any other any challenge to that finding. The legal effect of that finding is thus that as at the date of decision no accommodation-related reason existed so as to justify not considering the claimant's case under this concession.

25. In addressing the issue of whether the Adjudicator was right to apply D S Abdi principles to this case, we did consider whether the Under 12 Concession could properly be classified as a structured policy. This was not a point raised directly in the grounds of appeal but both Mr Jones in his very clear submission and Mr Summers in his helpful letter touched on it. We acknowledge that the Concession is not worded in mandatory terms. Mr Summers has highlighted the use of the word “may” in the opening sentence and similar wording is used elsewhere. At the same time, however, it clearly states that where the accommodation requirement is met “it will be appropriate in most cases to apply the concession”. Later on there is reference to circumstances justifying its “normal application”. It is also implicit in paragraph 12.3 of the IDI that this concession is treated as a provision parallel to the relevant Immigration Rules. We also bear in mind that D S Abdi principles have never been confined solely to concessionary policies in mandatory terms, although there has always been a dividing line drawn between such policies and the residual or unstructured discretion which the Secretary of State continue to possess under a number of provisions of the Immigration Acts.

26. Accordingly, we consider that the Adjudicator was correct to find that the decision in this case was not “in accordance with the law” by virtue of failing to consider the claimant under an applicable policy. She correctly limited her allowance to the extent it remains for the Secretary of State to reconsider his decision in the light of this policy.

The Article 8 issue
27. Was the Adjudicator also correct to allow the appeal on Article 8 grounds? In our view she was.

28. Her first reason was that the decision was not “in accordance with the law” within the meaning of those words as contained in Article 8(2) ECHR. It has been the cause of some confusion, since the advent of the Human Rights Act 1998, that the same wording – “in accordance with the law” is employed both in the Immigration Acts and in the text of under Article 8. This is not the place to analyse the extent to which they have different meanings. What matters here is that in the context of Article 8(2) the words impose on public authorities a duty to ensure not just that their decisions are allowed by the Immigration Acts or UK law generally, but that the law itself is sufficiently accessible and precise to enable the citizen to regularise his or her conduct. As set out by the European Court of Human Rights in Silver v UK [1983] 5 EHRR 347, Hashman and Harrup v UK [2000] Crim LR 185, to conform with the requirement of accessibility and precision, a law conferring discretion must indicate its scope and set out the way discretion is to be exercised. The words in Article 8(2) apply to subordinate legislation and concessionary policies: see Barthold v Germany [1985] 7 EHRR 383 and Malone v UK [1984] 7 EHRR 14.

29. As already noted the Under 12 Concession has now been withdrawn, but since it continues to arise in cases involving decisions made earlier, we shall put matters in the present tense. Plainly the Under 12 Concession, by virtue of being one of the published IDIs, has been and is accessible. However, we do not consider that it is sufficiently precise. That is not merely because even the Home Office in the grounds of appeal to the Tribunal erroneously thought it applied in entry clearance cases. It is because the Concession is seriously ambiguous as to whether or not a person who claims to fall within its terms but is found not to is entitled to receive an explanation of why he does not benefit from it. Significantly, in our view the letter from Mr Summers of the IND Policy Directorate implies that if a decision-take considers one of the requirements is not met (e.g. accommodation) then there is no obligation on him to consider its application. As already noted, this position sits somewhat uncomfortably with the last paragraph of the IDI, which appears to enjoin that an explanation be given to anyone who does not benefit from the concession as to why not.

30. We see sense in some areas of discretion being left to the Secretary of State as to whether to consider a case under a policy at all, particularly where no specific application has been made under it and there are obvious reasons why it would not apply. But in our view the Under 12 policy should more precisely (and unambiguously) state that when an application has been made under the concession, an applicant is entitled to an explanation as to whether or not it is considered applicable.

31. Bearing in mind, therefore, that we have found the Adjudicator was right to allow the application on Article 8 grounds, by virtue of the failure of the decision to be “in accordance with the law” within the meaning of Article 8(2), it is not strictly necessary for us to address whether she was right to allow it for the second reason she gave, which was based on disproportionality grounds. However, for completeness we shall address the situation insofar as it arises in the context of the Secretary of State’s grounds of appeal.

32. The first point raised in the grounds of appeal concerning this other aspect of Article 8 was that the Adjudicator wrongly viewed the decision as one relating to removal rather than refusal to vary leave. However, as Mr Jones conceded, this point was not sustainable in the light of the starred Tribunals determination in Kehinde (01/TH/2665) and the Court of Appeal judgment in Kariharan [2003] ImmAR 163. A direct consequence of the decision to refuse to vary leave to remain was that the claimant was in the UK without leave and was required to leave promptly.

33. The next ground advanced in the grounds of appeal was that the Adjudicator did not explain which essential facts she found to be different to those on which the Secretary of State based his decision. The grounds continued:

‘Following Razgar [in the Court of Appeal] it fell to the Adjudicator to have deferred to the respondent's position; having made no findings of fact that differed to (sic) those relied upon by the respondent.’

34. We would accept that the Adjudicator should have taken greater care to identify in the one place what different findings of fact she made; but a simple comparison between the Explanatory Statement and the determination enables a ready identification to be made. For example, the Adjudicator found that by the date of decision the grandmother has ceased for valid reasons to have responsibility for the claimant and that the father had never had any responsibility in key senses of the words: see paragraph 18. For example again, she found at paragraph 28 that the claimant had real ties in the UK. Contrast on both of these matters paragraphs 3.2 and 4 of the Explanatory Statement.

35. Thus it was simply incorrect of the grounds to go on to state: ‘Having made no findings of fact that differed ...’.

36. As regards the point made about deference, it may be that the author of the grounds had in mind the points set out in Edore [2003] INLR 361 and in M (Croatia) [2004] UKIAT 00024 starred. However, whilst these decisions do enjoin deference on an Adjudicator, they do permit him or her to exercise it by reference to different findings of fact.

37. The only possible flaw we can see in the Adjudicator's determination was in her treatment of the issue of whether there were insurmountable obstacles to the claimant being expected to return to Jamaica and apply for entry clearance under the Under 12 Concession from there. It is not immediately obvious to us that there were real obstacles to the claimant's mother arranging through relatives in Jamaica for them, or someone on their behalf to ensure care of the claimant whilst he applied from there for entry clearance. However, we do not think the Adjudicator's apparent laxity over this matter led her into any fundamental error. That is because she rightly identified as two very significant factors that the claimant whilst still very young had come to re-form strong family life bonds with his mother and brother and that the Secretary of State delayed over two years in sending the appeal papers to the IAA. Whilst normally such delay would not be a factor creating disproportionality, especially since there was no obvious detriment to the claimant's family life caused by it, the factor of delay in this case has to be put side by side with the fact that the relevant Immigration Rule (dealing with indefinite leave to remain) does not stipulate that entry clearance is a mandatory requirement. And the concession specifically refers to possible waiver of entry clearance.

38. For the above reasons we dismiss the appeal on both of the main grounds on which it has been brought.

39. Whether as a result of our decision the Secretary of State decides to afford the claimant the benefit of the Under 12 Concession remains entirely a matter for him. His only error of law in this respect has been in failing to give consideration to its application. Given, however, that we have upheld the Adjudicator's allowance of the appeal on Article 8 grounds, it would seem to us (in order to ensure effect is given to the Adjudicator's determination and in order to ensure an effective remedy is afforded under s.8 of the Human Rights Act 1998) that at the very least some period of leave to remain is appropriate in this case. However, as regards its duration only the Secretary of State is in a proper position to assess whether long-term family reunion in the UK is apt. Whilst one possible course for the Secretary of State to take is to grant ILR, it would be quite wrong, indeed ultra vires, for us to give a direction that ILR be granted.