Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Case Number: JR/6041/2014

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Heard at Field House

On 5 April 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

The Queen on the application of CS
(by his litigation friend, JS)
Applicant
and

Secretary of State for the Home Department

Respondent

Representation:
For the Applicant: Mr Ranjiv Khubber, Counsel instructed by Coram Children's Legal Centre
For the Respondent: Mr Zane Malik, Counsel instructed by Government Legal Department

Anonymity Direction
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Applicant or his litigation friend. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Judgment

Factual Background

1. The Applicant, CS, through his mother and litigation friend, JS, challenges the Respondent's decision dated 19 February 2014 ("the Decision"). By the Decision, the Respondent granted the Applicant and his mother limited leave to remain of thirty months. The Applicant contends that he should be granted indefinite leave to remain ("ILR"). There is no challenge to the grant of thirty months' leave to remain to JS.

2. The background to this challenge can be shortly stated. JS entered the UK in December 2000 from Jamaica. She was then aged seven years and arrived with her elder brother to join her mother. Neither child nor mother had any lawful basis of stay in the UK. JS and her mother and sibling were overstayers. CS was born to JS in the UK on 17 April 2011. He was therefore aged less than three years at the date of the application and was aged four years at the date of the hearing before me.

3. On 28 October 2013, JS's former representatives (the Cardinal Hume Centre) made an application for leave to remain on her behalf as she had by then spent more than half her life in the UK and was aged under twenty-five years. The Applicant was included in the application as JS's dependent.

4. In response to that application, on 19 February 2014, the Respondent issued the Decision and thereby granted JS thirty months' leave to remain and granted CS leave to remain of the same duration in line with his mother.

5. Following the Decision, JS's current representatives issued a letter before action to the Respondent challenging the Decision on the basis that ILR should be granted to CS. They contended that the Decision was contrary to CS's best interests and Article 8 ECHR. On 15 April 2014, the Respondent responded to the letter before action maintaining the Decision.

6. This application for judicial review was issued on 6 May 2014. Permission to apply was refused on the papers by UTJ Gleeson on 26 January 2015. However, following an oral hearing, on 1 May 2015, permission was granted by UTJ Kopieczek on the basis that the Decision was arguably unlawful on the basis that it did not reveal on its face that consideration was given to CS's best interests and "the wider considerations advanced in support of the application for leave to remain". As a result, the Judge found the case of R (on the application of Alladin and Wadhwa) v Secretary of State for the Home Department [2014] EWCA Civ 1334 ("Alladin and others") on which the Respondent relies to be arguably distinguishable.

7. Detailed grounds were filed by the Respondent dated 8 June 2015 which stand also as the Respondent's skeleton argument. The Applicant filed a skeleton argument on 22 March 2016 accompanied also by an Appendix setting out the relevant legal framework and a chronology. I also received a bundle of relevant documents and two volumes of legal authorities. I was greatly assisted by the able submissions made by both Counsel.

The Application

8. The starting point for my consideration is the application made by the Applicant's former representatives. This was accompanied by a covering letter. That letter began by referring to JS's immigration history and pointed out that JS, as a result of her immigration history qualified for leave to remain under paragraph 276ADE(1)(v) of the Immigration Rules ("the Rules"). Reliance was also placed on her Article 8 ECHR rights.

9. In relation to CS, the letter referred to him as JS's dependent. The letter stated that "Reliance is placed on his Article 8 rights and your Section 55 duty to consider his best interests." The letter went on to refer to CS's and JS's circumstances in greater detail. At that time, they were said to be supported by social services and, absent that assistance, would be homeless and unable to meet their essential living needs. A waiver of the application fee was therefore sought.

10. The covering letter then went on to make extended submissions concerning Article 8 and section 55 Borders, Citizenship and Immigration Act 2009 ("section 55") as follows:-
"The applicants have established family and private life in the United Kingdom with each other and their friends and family, and now have more ties to the United Kingdom than their country of origin. Under Section 55 of the Borders, Citizenship and Immigration Act 2009 and in accordance with the guidance laid down by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, the best interests of any children affected by the decision must be a primary consideration. Obviously it would be in the best interests of the second applicant to remain in the United Kingdom where he has established his private and family life, and to be granted legal status here. It would particularly be in his best interests because conditions for children in Jamaica are less favourable (see enclosed country information).
It would therefore be reasonable to grant them leave to remain. We would also ask that, in your discretion, you consider whether a grant of Indefinite Leave to Remain would be in the best interests of the children, following the case law in SM and TM and JD and other v SSHD [2013] EWCA 1144 (Admin)."

11. The letter then recorded that as JS and CS were destitute the grant should permit recourse to public funds. It was said that the imposition of that condition would amount to a breach of the relevant Home Office policy and would also be a breach of Article 8 ECHR and section 55. In fact, the Decision did impose a condition that JS and CS could not access public funds but there is no challenge to the imposition of that condition.

12. The application included a witness statement from JS. The statement repeats that she and CS would be destitute absent the support from social services and asks that she be allowed to remain in the UK to further her education and work for the benefit of her son. The only reference to CS's best interests is that it would be in his best interests to remain in the UK.

The Decision

13. The Decision followed. That is addressed to JS and states as follows:-
"Thank you for your application for limited leave to remain in the United Kingdom. Your application for limited leave to remain on the basis of your Private Life has been considered.
Consideration has been given under paragraph 276ADE of the Immigration Rules and you have been granted leave within the Immigration Rules under paragraph 276BE because you are aged 18 years or above and under 25 years and have spent at least half of your life living continuously in the UK. Please note that your dependent child has been granted leave in line with you."

14. The Decision goes on to record that a period of 120 months is required in order to qualify for settlement under the Rules and that further leave should be sought prior to the expiry of the period of leave granted via a charged application. I note at this point that I was told that the current period of CS's and JS's leave will expire in June 2016 so that it will be necessary for them to apply for further leave very shortly.

Pre-action correspondence

15. On 2 April 2014, Coram Children's Legal Centre sent a letter before action. That letter contains a lengthy section setting out the legal framework relating to the best interests of the child. The relevant submissions are then made in the following terms:-
"This case concerns a vulnerable child who has, through no fault of his own, been born without immigration status in the UK. His mother was brought to the UK as a young child of 7. It is understood that the Claimant's grandmother's efforts to regularise her immigration status and [JS]'s status were previously unsuccessful (notwithstanding that the Claimant's mother had lived in the UK since the age of 7).
The Claimant is vulnerable due to the fact that but for the support he and his mother have been receiving from the Local Authority, they would be homeless and destitute. As a consequence of his mother having no immigration status, they have, as a family been socially isolated. The Claimant's mother has been unable to work or to further her education - despite having lived in the UK since she was a young child. The Claimant's and his mother's lack of immigration status has caused his mother considerable stress and anxiety, which has inevitably affected the Claimant during the crucial first three years of his life.
In the Defendant's letter dated 19 February 2014 no reasoning is given for the Defendant's decision to grant the Claimant 2.5 years' leave to remain, indeed, there is no reference whatsoever to s55 in the Defendant's letter. This is despite the specific request in the covering letter from the Cardinal Hume Centre dated 28 October 2013 for the Claimant to be granted indefinite leave to remain (with reference to the case of SM & others)"

16. The letter then goes on to assert that based on the principles in R (SM and others) v Secretary of State for the Home Department [2013] EWHC 1144 ("SM") there has been "a fundamental failure to consider what would be in the Claimant's best interests in these circumstances." It is submitted that there are "exceptional and compelling circumstances" which should have led the Respondent in the application of her policy on the best interests of the child to grant ILR. It is said that this emerges from the duty not simply to have regard to the welfare of the child but also to his development.

17. In her response to the letter before action, the Respondent noted the applicant to be JS rather than CS. She then set out her response to the matters raised as follows:-
"(i) The Secretary of State received an application for limited leave to remain on form FLR(O) on 30th October 2013. She granted this application with recourse to public funds on 19th February 2014.
(ii) It is the position of the Secretary of State that her decision to grant leave with recourse to public funds is in full compliance with her s55 duties. It is additionally the case that while your client's former solicitors may well have made representations in support of a grant of ILR, they did not in fact make a settlement application, they made an application for limited leave to remain.
(iii) Notwithstanding the fact that your client has 30 months LTR, it remains open to her to apply for settlement at any time should she feel that she meets the requirements for it.
(iv) In the circumstance where your client has the alternative remedy of making the correct application, the claim is not conceded in any way."
There is an error in the reference to the grant being with recourse to public funds but, in the absence of challenge to this aspect of the Decision, that is not material.

18. The application for judicial review includes a witness statement from JS in which she sets out why she seeks ILR for CS. It is common ground that this was not before the maker of the Decision. Mr Khubber submitted that it was nonetheless relevant to the question of the materiality of the error in the Decision since it sets out the sorts of issues which he says should be taken into account. He also submitted that it is relevant to my consideration concerning proportionality under Article 8 ECHR. In support of that submission he relies on the case of R (A) v Kent Constabulary [2013] EWCA Civ 1706. Mr Khubber took me in particular to the reference to a number of immigration cases at [77]. It is arguable that read in the context of the remainder of that judgment, Mr Khubber's reliance on this case is misconceived. However, as a result of my conclusions on the Article 8 ground, I do not need to decide this.

Applicant's grounds and Respondent's response

19. The Applicant's grounds can be summarised in the following way:-
Ground one: fettering of discretion
The Applicants submit that on a plain reading of the Decision and pre-action response the Respondent has required an application for settlement in order to consider the grant of ILR. It is said that this is inconsistent with the flexible approach in her policy to consider the grant of non-standard periods of leave.

Ground two: failure to take into account relevant factors/breach of s55 duty
It is said that it is clear from the relevant legal framework that the Respondent is required to appreciate the long term best interests of the child in any decision making and that duration of leave helps to promote the long development of the best interests of the child.
Ground three: taking into account irrelevant factors/misdirecting herself on the evidence and the law
The Applicant asserts that the Respondent has failed to understand that the Applicant was seeking limited leave to remain under the Rules but also ILR under the relevant policy outside the Rules.
Ground four: decision irrational/disproportionate
The Applicant submits that by reason of the errors disclosed by the first three grounds, the Decision is irrational. The Applicant says that, since the Decision involves human rights consideration, the Tribunal is not limited to considering this on a 'Wednesbury' basis but should also consider the merits. It is argued that the Decision fails to take into account the child's best interests and is therefore not in accordance with the law (dealing with the third question set out in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 - "Razgar"). It is submitted that the Decision does not serve a legitimate aim (the fourth Razgar question) and is not proportionate (the fifth Razgar question).

20. Criticism is made of the Respondent's summary grounds on the basis that those contain an ex post facto justification for the Decision. It is not necessary for me to refer to those since the Respondent's response to the Applicant's grounds is to be found in the Detailed Grounds in any event. That response is as follows:-
The Applicant's application was for limited leave to remain. CS and JS do not qualify for ILR under the Rules.
The grant of thirty months is consistent with what is now the policy under the Rules - SM pre-dates the changes brought about in July 2012. The Respondent was entitled to grant a period of leave based on the Rules.
Even if the Respondent was required to consider granting a longer period of leave outside the Rules, there was no evidence before the Respondent at the date of Decision as to what CS's best interests required. The witness statement of JS setting out why CS should be granted ILR was not before the Respondent at the date of Decision.
Article 8 is not engaged.

21. As the Applicant recognises, there is considerable overlap between the grounds. The Respondent's response does not follow the same formulation. I therefore approach the matter in relation to the overall legal errors asserted. Before doing so, though, it is convenient to dispose of the fourth ground concerning the impact of Article 8 ECHR.

Article 8 ECHR

22. Mr Khubber's submissions in relation to Article 8 ECHR are as I record above at [19]. As I pointed out to him in the course of his oral submissions, however, the basis of the challenge ignores the first and second Razgar questions namely whether CS's Article 8 rights are engaged by the Decision and, if so, whether the grant of a period of limited leave amounts to a sufficiently serious interference to lead on to the third to fifth questions which, it is common ground, are matters for the Respondent to justify.

23. Mr Khubber accepted in discussions that the first two questions are matters for the Applicant to demonstrate. That is confirmed by the case of Miao v Secretary of State for the Home Department [2006] EWCA Civ 75. That case concerned an application for family reunion of a child with his refugee father. Unsurprisingly, therefore, engagement was not at issue and the case turned on whether there was interference. The Court of Appeal confirmed that it is for an applicant to establish a threatened interference with a protected right at which point the burden shifts to the State to justify that interference.

24. In relation to engagement, Mr Khubber relied on the case of Niemitz v Germany (1993) 16 EHRR 97. That case concerns the enforcement of a search warrant at the offices of a lawyer who claimed that the action infringed his Article 8 and Article 1, Protocol 1 rights. It appears from [74] of the judgment that the Court was influenced by the applicant's position as a lawyer and the interference with his duty of confidentiality to his client. That is very far removed from the present case. Mr Khubber also took me to the case of R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 which concerns the retention by the police of photographs of the claimant at a meeting in a public place. In that case, the Court of Appeal held that the actual taking of the photographs was not sufficient to engage the Appellant's human rights. It was the retention of the photographs which constituted the engagement. Those cases are distinguishable from the present.

25. It is difficult to see how the grant of thirty months' leave rather than ILR has any impact at all upon CS in the context of rights protected by Article 8. A child at CS's very young age is unlikely to have any awareness of the differential impact arising from the length of leave granted and there is no reason to suppose that further leave to remain will not be granted on further application provided CS and JS continue to qualify under the Rules for leave. At the very least, the Respondent is entitled to expect some explanation in the context of the application made to her as to how Article 8 is engaged or interfered with by the grant of a period of limited leave. In the absence of such explanation, I do not accept that CS's Article 8 rights are even engaged by the decision to grant a limited period of leave as opposed to ILR.

26. Even assuming that the Decision engages CS's Article 8 rights, however, it remains for CS to show that there has been an interference of sufficient severity to require justification. I note what is said in VW (Uganda), AB (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 5 and that there is no particularly high threshold in relation to Article 8(1) so that where the state action "touches the individual's personal autonomy" it may not require a particularly serious interference for the burden to shift. However, this case is unlike that case and other cases such as ZH (Tanzania) v SSHD [2011] AC 166. The issue in those cases is whether removal of a child amounts to a breach of Article 8 ECHR. In such cases, the interference is obvious. That is not so in this case.

27. Mr Khubber submitted that the interference with CS's rights is the Respondent's failure to appreciate the impact on CS of a grant of limited leave rather than ILR. That submission conflates the section 55 duty with the issue of whether there is an interference with Article 8 rights. The argument is also misconceived because it relates to the third Razgar question (whether the decision is "in accordance with the law") and not the second.

28. In his final formulation of how Article 8 is engaged and how the grant of a shorter period interferes with CS's rights, Mr Khubber submitted that the interference is created by the grant of a short period of leave where it is recognised that the child's best interests are to remain in the UK in the long term. However, in this case, the grant of leave is founded on JS's ability to meet the Rules to remain rather than CS's. If the application had been made on the basis of CS's length of residence, the application - at least under the Rules - would be bound to fail as he has been in the UK for less than seven years. The Respondent does not dispute that the best interests of the child at his age and particularly where he has no contact with his father require him to remain with his mother. That is not to say though that either his best interests or his own Article 8 rights require that to be in the UK or require that to be a permanent arrangement. Further, in any event, CS and his mother have been granted the leave set out in the Rules of no more than thirty months. As Mr Malik submitted (relying on the case of Zia v Secretary of State for the Home Department [2015] UKUT 191), in general, an applicant can legitimately expect only that leave will be granted based on the Rules which are in force at the date of decision. As I pointed out in the course of Mr Khubber's oral submissions, even if leave had been granted based on CS's length of residence in the UK, the rule would normally require only that he be granted thirty months' leave to remain.

29. Even if I were to find that CS's Article 8 rights are engaged by the Decision, therefore, I am quite unable to accept that the Applicant is able to show an interference of sufficient severity with his Article 8 rights in the circumstances of his case and on the evidence before me and which was before the Respondent. The cases to which I was referred relating to the best interests of the child in this context are cases concerning removal of a child where there is quite clearly an interference occasioned by the removal. None of the cases to which I was taken in the context of a challenge to the duration of leave deal with this issue on the basis of Article 8 ECHR. As Mr Malik pointed out, in the case of R(NS) v Secretary of State for the Home Department [2014] EWHC 197 ("NS"), Article 8 was raised as one of the grounds of challenge but that ground was not pursued. I do not discount the possibility that it might be possible to show interference in an appropriate case where for example, the grant of a limited period has a particularly severe impact (perhaps impacting on a child's health or the like) but that is not this case.

30. In those circumstances, I do not need to consider Mr Khubber's submissions in relation to the third, fourth and fifth questions in Razgar. In fact, there is a degree of overlap here too between the Article 8 grounds and the conventional public law grounds. The third question as to whether the Decision is in accordance with the law overlaps with Mr Khubber's submissions concerning section 55 and failure to have regard to that and the Respondent's policy. The fourth and fifth regarding the necessity and proportionality of the grant of a shorter period of leave overlap with the question whether the Decision is reasonable, albeit if Mr Khubber succeeded in relation to his Article 8 arguments, he submits that I would be bound to consider for myself whether the Decision amounted to a proportionate response and whether it breached CS's rights (R (on the application of SA) v Secretary of State for the Home Department IJR [2015] UKUT 00536 (IAC)). As it is, since I do not accept that Article 8 is engaged by the Decision, the issue for me is whether the Decision is unlawful or unreasonable on conventional public law grounds.

Is the Decision unlawful or 'Wednesbury' unreasonable?

31. I move on then to consider the Applicant's case that the Decision is unlawful or irrational on the 'Wednesbury' basis.

Section 55

32. The focus of this aspect of CS's case is whether the Respondent has had proper regard to section 55. The requirements of section 55 are well known but I set those out for completeness:-
"(1) The Secretary of State must make arrangements for ensuring that -
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom,?.

(2) The functions referred to in subsection (1) are -
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;?

(3) A person exercising any of those functions must, in exercising the function,
have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."

33. Mr Khubber relied in particular on the requirement to have regard to the promotion of the welfare of the child. He referred to Articles 3,4 and 6 of the UN Convention on the Rights of the Child and General Comment No 5 (2003) which advocates a wide interpretation of the word "development" in Article 6 of the Convention. He referred also to the Home Office Guidance "Every Child Matters" dated November 2009 and drew attention in particular to the requirement to take the guidance into account and to give clear reasons for departing from it if a decision is taken to do so. I was not referred to any part of the guidance, however, dealing with the specific context of this case as opposed to general principles which are now well stated and understood namely that the best interests of the child should be a primary consideration.

34. Mr Khubber also relied on the case of JO and others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC) and to the reference to the unqualified duty on decision makers and caseworkers to have regard to section 55 on a case by case basis. The decision in that case sets out what are termed the "seven principles" arising from the case of Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690. Those include the necessity to have a clear idea of a child's circumstances and to require a careful examination of all relevant factors in an Article 8 assessment. The point is made at [11] that the requirement to be properly informed and carefully examine all relevant information and factors is a necessary part of the task of identifying the child's best interests and balancing them with other material considerations.

35. I readily accept those propositions as they apply in the context of an Article 8 assessment concerning the removal of a child. The requirements are less obvious where, as here, the decision is to permit the child to remain in the UK albeit not with an immediate right to settlement. In my view, in such a case, a decision maker is entitled to expect to be told in what way, if any, the grant of a lesser period impacts on the child's best interests in the context of the specific case before the issue arises. I turn therefore to consider whether the obligation arises in this case based on what was before the decision maker and the Respondent's policy to have regard to the child's welfare and development when deciding upon the period of leave to be granted.

The Rules and the Respondent's policy

36. In reality, the central issue in this case is the application of the Respondent's policy in relation to whether and when a longer period of leave should be granted. I turn therefore to consider therefore whether the Respondent has failed to have proper regard to her policy and/or whether the reasoning in the Decision was deficient for failure to show that the decision maker had regard to her policy.

37. It is common ground that the Applicant and JS cannot meet the Rules for a grant of ILR. Mr Khubber accepts that the application which JS made was for limited leave to remain. His case however is that it was not sufficient for the Respondent to simply grant limited leave to remain because that was the application made. Since the case involves a child and the Respondent was asked to consider that child's best interests and to consider a grant of ILR, it was incumbent on her to consider that request by application of her policy regarding the child's best interests. In so doing, it was incumbent on her to explain her reasoning for refusing to grant ILR.

38. Mr Khubber submitted that the Rule itself incorporates the exercise of discretion. The relevant part of paragraph 276BE(1) states as follows:-
"Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1)?..
[my emphasis]
Mr Khubber points to the use of the word "may" and submits that this shows that the Rule includes discretion to grant a longer period of leave. Mr Malik points to the words "not exceeding 30 months". The Rule therefore provides that the Respondent is not obliged to grant a period of 30 months and may decide to grant less (or even grant nothing at all) if the criteria in paragraph 276ADE(1) are met. I prefer Mr Malik's submissions. If Mr Khubber were correct in his submission the words "for a period not exceeding 30 months" would be meaningless.

39. I turn then to consideration of the issue whether the Respondent has had regard to her policy. The policy which both parties accept is relevant in this case is one dated January 2014 entitled "Guidance on consideration of a child's best interests under the family and private life rules and in Article 8 claims where the criminality thresholds in paragraph 398 of the rules do not apply" ("the Policy"). It is trite law that failure to have regard to a relevant policy is a public law failure which can render a decision unlawful. It is common ground that the Policy is the only one relevant to this case. In particular it is accepted that the successor policy to that under consideration in SM and other cases and which relates to the grant of leave where a person is unable to meet the Rules is not relevant. This case concerns the grant of leave under the Rules albeit the grant of a longer period than thirty months would entail the exercise of discretion outside the Rules.

40. Much of the guidance in the Policy relates to the issue of whether a child should be granted leave under the Rules where the issue which arises is whether it is reasonable to expect the child to return to his home country. Mr Malik accepted however that some of the section beginning at [23] headed "Exceptional circumstances that might warrant a grant of leave outside the Rules" is relevant to the present case. My attention was drawn in particular to [28] and following:-
"[28] There is also discretion to grant a longer period of leave where appropriate. There may be cases where a longer period of leave outside the rules 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 other particularly exceptional or compelling reasons to grant limited leave for a longer period or to grant Indefinite Leave to Remain (ILR). The onus is on the applicant to establish that the child's best interests would not be met by a grant of 30 months' leave to remain and that there are compelling reasons that require a different period of leave to be granted.
[29] Caseworkers must also have regard to the best interests of the child as a primary consideration (but not the only or the paramount consideration) when deciding the period of leave to be granted. Whilst the expectation is that a period of 30 months' (2.5 years') leave will generally be appropriate, there may be cases where evidence is provided demonstrating that a longer period of limited leave (or ILR) is required in order to reflect the best interests of the individual child under consideration. A longer period of leave can be granted where the child meets the requirements of the rules (in which case they would be granted leave outside the rules for a longer period than 30 months) or where they fail to meet the requirements of the rules but there are exceptional circumstances in their case that warrant a grant of leave outside the rules.
[30] In considering the period of leave to granted, factors such as the length of residence in the UK, whether the child was born in the UK and strong evidence to suggest that the child's life would be adversely affected by the grant of limited leave rather than ILR are relevant. The conduct of the child's parent(s) or primary carer and their immigration history, and the public interest in maintaining fair, consistent and coherent immigration controls, are all relevant considerations as to the length of leave granted. Where the parent(s) or primary carer already has leave, or where their application is being decided first, the period of leave granted to the parent or primary carer is relevant to the assessment of what period of leave to grant the child. Whilst it will usually be in the child's best interests to have leave in line with their parent(s) or primary carer, caseworkers should take into account any particularly compelling factors which may warrant a longer period of leave. It should be borne in mind that the child is not responsible for the conduct or immigration history of their parent(s) or primary carer. An example of a case where it might be appropriate to grant a child ILR might be where the child had a serious and chronic medical condition which might not be able to be treated in the country of return and it was considered in their best interests to grant the child ILR to provide a greater degree of certainty for the purposes of their continued treatment or mental well-being. However, the threshold is high and concerns the direct effect on the person rather than simply their age.
[31] Where a decision is taken to grant ILR to a child because it is considered to be in their best interests, this does not necessarily mean that the parent(s) or primary carer should be granted ILR in line. It will normally be appropriate to grant a period of limited leave of 30 months to the parent(s) or primary carer unless they can demonstrate exceptional and compassionate circumstances in their own right that warrant departure from this policy."

41. As a preliminary issue to my consideration of the lawfulness and reasonableness of the Decision, I need to consider the material which it is appropriate for me to take into account. Mr Khubber submitted that I should have regard to the content of the letter before action. Mr Malik submitted that I should not because that letter goes beyond simply setting out why the Decision is unlawful based on what was before the decision maker and contains a substantial amount of new material and submissions which were not before the original decision maker. In that context, he pointed to the response to the letter before action which sets out the Respondent's position. Her position is that matters which were not before the original decision maker could form part of a further application but could not be used to challenge the Decision. Mr Malik conceded that if the original application had been accompanied by a letter similar to the letter before action setting out fully the reasons why it was said that CS's best interests would be affected by a grant of limited leave and with proper evidence of the impact of a failure to grant ILR, the Respondent would be bound to consider those submissions even if the application itself was for limited leave and not indefinite leave.

42. Mr Malik also pointed out that the Applicant's grounds do not challenge the response to the letter before action. He relied in support of his submissions on Abdulla v Secretary of State for the Home Department (JR/6393/2013). The arguments set out at [32] of the judgment are similar to the arguments made by Mr Khubber in this case. As noted at [31], the pre-action response in that case consisted, as here, in a statement that the original decision was not unlawful, that further submissions (here a fresh application) could be made and that the case had been dealt with appropriately and no further action would be taken. Phillips J accepted the submission made by Mr Malik there and in this case that the pre-action response was not a separate reviewable decision and that it was open to the applicant to make further submissions.

43. By analogy with the fresh claims context, I agree with Mr Malik's submissions that my consideration is limited to the material which was before the maker of the Decision. If the Respondent had decided, following the letter before action or the grant of permission, to issue a supplementary decision letter, I could have taken into account the further submissions made in the letter before action which go beyond what was said in the original covering letter. I could also have considered the further evidence submitted with the application for judicial review if the decision maker had the opportunity to take that into account. However, the Respondent's position in the pre-action response was that JS should make a further application if she wished those matters to be taken into account. For that reason, I consider myself constrained to review the Decision only on the basis of the material before the maker of the Decision.

44. I was taken to a number of cases which concern the duration of leave granted. I do not need to refer to those in detail. Both parties accept that, whilst those cases might appear on their face to be highly relevant to this case, most of the cases can be distinguished in terms of the policy there under consideration. Those cases consider the grant of leave where the applicant was unable to succeed under the Rules and therefore the Respondent's policy on discretionary leave applied. That policy and its successor are not relevant in this case. However, the cases are relevant to the general principles in play.

45. The starting point is the case of SM in which Holman J found that the Respondent's decision to grant only limited leave was unlawful. He also held that the Respondent's policy regarding the period of leave to be granted was unlawful for failure to have regard to section 55. This case is distinguishable from the present not simply because it pre-dates the changes brought about by the introduction of the new Rules in July 2012 but also because, in SM, the applications were made on the basis of a request for settlement. Holman J accepted therefore that, where the Respondent granted only limited leave, it was incumbent on her to explain her reasons for that course.

46. I note at this juncture, Mr Khubber's submission that consideration of the present case is more nuanced because, slightly unusually, it is the position of the child's mother, JS, which led to the grant of leave to remain under the Rules as opposed to the more usual case where it is a length of residence by a child of more than seven years which leads to the grant under challenge. In the latter cases, it is recognised by the Rules that it is the period of residence of the child and the fact that it is not reasonable to expect the child to return to his or her home country which gives rise to the grant of leave to remain. Mr Khubber submits that because this case is more nuanced than the normal case involving a child, it is incumbent on the Respondent to give fuller reasons than she has done (or indeed on Mr Khubber's submission any reasons) for granting only limited leave. He says that this is so even if there were only limited information about the child's best interests in the material before the maker of the Decision.

47. As I pointed out to Mr Khubber, however, the facts of this case tend to point in the opposite direction. The main focus of the grant of leave in this case is the length of residence of the child's mother and not of the child himself. That is reflected by the fact that the child is the dependent on the application rather than being the focus of it. In such circumstances, the grant of leave to the dependent in line with the main applicant satisfies the application which is made absent any reason in policy or otherwise to consider a longer period. In those circumstances, the increased duty if there is one is on the applicant to explain why ILR should be granted because of the involvement of the child as dependent.

48. The Respondent relies on the cases of Alladin and others. The Respondent's decisions in those cases also pre-date the introduction of the new Rules in July 2012. As Mr Khubber also pointed out, in that case, the Respondent had issued a supplementary decision letter. That however related only to Mr Alladin's case. In Mr Wadhwa's case, the decision letter stated only that discretionary leave to remain would be granted. There was no further explanation. The Court of Appeal took into account the case of SM and, since the Respondent did not appeal that judgment, accepted that the policy which the Respondent had applied in the two cases was unlawful. The question for the Court was therefore whether the error of law was material.

49. The Respondent's submissions are recorded at [54] to [56] of the judgment and are in essence that section 55 adds little where leave is granted as the fundamental aspects of the welfare of the children are already catered for. Crucially, in those cases, Counsel for the Respondent pointed out that there was no evidence of any detriment suffered. In its discussion, the Court accepted that the authorities in relation to the section 55 duty showed that this duty applied to the decision whether to grant leave to remain at all and decisions as to duration of leave. However, it went on to say as follows:-
"[59] 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 Mr Gallagher amount to factors which are worthy of consideration, and deserve to be placed in the balance after the best interests and welfare 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."

50. Mr Malik relies in particular on the Court of Appeal's findings in relation to Mr Wadhwa's case at [70] as follows:-
"[70] As I have intimated, a striking feature of Mr Wadhwa's case is that at no stage did he make a clear request to the Secretary of State for the grant of ILR. In those circumstances it would be wrong to criticise the Secretary of State for granting DLR in the belief that she was acceding to the only application made. Consistently with the absence of any request for ILR, none of the material sent to the UKBA in support of the application pointed to any disadvantage associated with the grant of DLR as opposed to ILR."
I accept Mr Khubber's point that this is not conclusive. In that case, it is said that ILR had not been requested whereas in this case the solicitors had at least requested consideration of the grant of ILR. It is however supportive of the Respondent's case that in order to require the Respondent to consider the grant of ILR, there must be something before her on which to base the exercise of discretion. That is also consistent with the Policy.

51. The other case on which Mr Malik placed considerable reliance is R (on the application of Amitkumar Pravinbhai Patel) v Secretary of State for the Home Department (duration of leave - policy) IJR [2015] UKUT 00561 (IAC). The headnote in that case so far as relevant reads as follows:-
"(1) The decision of the High Court in R (SM & others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) relating to the 2009 Discretionary Leave policy and instruction only applies to cases where the decision to grant leave to remain was made prior to 24 June 2013.
(2) There is no obligation on the Secretary of State to grant ILR or to consider granting ILR in circumstances where no formal application for ILR has been made?."
That case considers the position after the introduction of the family and private life Rules in July 2012. However, in that case the grant of leave was based on an appeal allowed on the basis of Article 8 ECHR apparently outside the Rules. As Mr Khubber also points out, it does not appear that the Judge's attention was drawn to the Policy and accordingly the decision may be per incuriam (although it is possible that the Policy was not thought relevant as in that case the grant was giving effect to an appeal allowed outside the Rules).

52. The final case in this line of cases on which Mr Malik relies is NS. This is a case dealing with the situation after the Rules change in July 2012. In that case, the Court also considered the Policy. Indeed the Policy was itself challenged. In the course of its discussion, the Court drew attention to the way in which best interests arise for consideration under the Policy as follows:-
"[40] The Guidance does place the initial onus on the applicant to raise the issue of the best interests of the child involved. Given a context in which the applicant is seeking a period of leave that is substantially longer than that ordinarily provided by the IR, I do not regard this as an objectionable feature, or one that itself is in conflict with, or undermines, the duty under section 55. The applicant should be in a position to explain what children are involved in the decision, and how in broad terms the interests of the children would be adversely affected if, for example, LTR rather than ILR were granted. In some cases of course the Defendant will have independent access to information bearing on the immigration history of the persons involved, and could be expected, consistent with the duty under s55, to take into account the welfare of a child concerned, even if the applicant did not specifically raise that consideration. Once the decision maker has basic and reliable information concerning the position of any child involved, the decision maker is then required under the Guidance to treat the best interests of any child involved as a primary consideration. Furthermore, once the decision maker can see that the issue of the welfare of a child has arisen, I accept that the decision maker should be pro-active in seeking to obtain, if need be, further information bearing on that issue."
The Judge went on to note that the Claimant initially applied only for limited leave although had then made representations for ILR which the Defendant had considered in a supplementary decision which the Judge took into account. However, the case can be distinguished on its facts from the present case because, as the Judge notes at [44], the case concerned the grant of leave to an adult who sought leave on the basis of her relationship to her children who were British citizens and therefore no point arose as to the appropriate length of leave for a child.

53. Finally, for completeness in this section, Mr Malik referred to the case of R(Sayaniya) v Upper Tribunal (IAC) and Secretary of State for the Home Department [2016] EWCA Civ 85. Mr Malik relied on this case as authority for the proposition that, where leave is sought by application of the Rules, the grant of leave in accordance with the Rules does not amount to a fetter on discretion. The Court of Appeal accepted in that case that it remains open to the Respondent to grant leave or a different period of leave in the exercise of her discretion outside the Rules, but the onus is on the applicant to seek reconsideration on that basis.

Adequacy of reasons

54. I turn then to the issue of the sufficiency of the reasons given in the Decision for the period granted. It is common ground that the Decision contains no express reference to a consideration of section 55 or best interests - indeed that was the reason given for the grant of permission. Mr Malik submitted that I should not on that account find the Decision to be unlawful or unreasonable.

55. There are two issues for me to consider. Firstly, what is the Respondent's duty to give reasons and, secondly, whether the reasons are sufficient in light of what was before the decision maker. Mr Malik drew my attention to South Bucks District Council and another v Porter (No 2) [2004] UKHL 33 and to the passage at [35] and following. That case arises in a very different context - that of planning. The House of Lords also made clear that the case was considered in light of the previous authorities in that context. In cases involving in particular fundamental human rights, there may well be a need to give fuller reasons (and it may be that it is for the Tribunal itself to consider the issue of whether rights are breached). However, in a case such as this when I am considering the reasonableness of the Decision against the backdrop of the traditional 'Wednesbury' principles, the requirement to give reasons and consideration of the adequacy of reasons are unlikely to be very different. At [36] of the judgment, Lord Brown set out the following principles:-
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration?. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

56. Of course, Mr Khubber's response to this passage is that the Decision does not do what is required. It does not refer to let alone consider section 55 and what is in the best interests of CS. However, that submission has to be judged against the material before the decision maker and the decision maker's obligations under the Policy. I have set out the relevant extract from the Policy at [40] above. As that makes clear, it is for the applicant to provide evidence and put forward a case as to why the child in the particular case requires a longer period of leave. That point is reinforced by what was said by the Court of Appeal in Alladin and others even though, in that case, the Court was considering a different policy.

57. In my judgement, the Respondent is entitled in the absence of anything to the contrary and when faced with an application for leave to remain to grant what is sought. That is particularly the position in this case where the main applicant was JS who sought leave to remain expressly because she met the criteria in paragraph 276ADE(1)(v). CS was her named dependent. Again, absent anything put to the decision maker to the contrary, the Respondent was entitled to do as she would do in the case of any other dependent when the main applicant succeeds and grant leave in line with the main applicant. Indeed, that is what the Policy requires ([30] of the Policy).

58. The issue is whether the maker of the Decision in this case was required to go further because of the matters raised in the covering letter and to consider the exercise of discretion to grant a longer period of leave. As I have already noted, under the Policy, it is for the applicant to put forward his or her case for a longer period of leave. That is not inconsistent with the duty under section 55 which is to have regard to development and promotion of the welfare of the child. This is not a case, as it would be if the child were threatened with removal, where it is obvious what impact the decision would have on the child's best interests. This is a case where the child is being permitted to remain in the UK and the only issue is whether the child should be granted settlement from the outset.

59. Mr Khubber sought valiantly to suggest that the covering letter should be interpreted as an exhortation to the Respondent to grant ILR to CS on the basis that the Decision recognises that JS is likely to remain in the UK because of her previous length of residence and that, accordingly, CS's long term future would also be in the UK. Recognition of that position together with the requirement to promote CS's welfare would then require the grant of ILR. However, that interpretation is not supported by a plain reading of the letter. The letter relies on JS's length of residence as the basis for the grant of leave. That is unsurprising since it was her length of residence which enabled mother and child to meet the relevant Rule. The fact that JS can meet the criteria under the Rules leads, as the solicitors would know, to a grant of thirty months' leave. If it were the case that CS's best interests required him to be granted something more, it was incumbent on the solicitors to (at least) set out the reasons why ILR was sought. Absent such reasons, the Respondent was entitled to treat CS as JS's dependent and grant leave in line.

60. I accept that section 55 and Article 8 are raised in the letter and that it is noted that the child is a dependent on the application. A request is also made for the Respondent to exercise her discretion to grant ILR. However, the main submission in relation to section 55 relates to the issue of recourse to public funds. The Respondent declined to accede to that submission and refused to grant recourse to public funds. Interestingly, that refusal is not challenged. In relation to the request made for the Respondent to consider the exercise of discretion to grant ILR, no reason is given by CS's former solicitors and no evidence is relied upon. JS's statement in support of the application makes no mention of the need for settlement in CS's best interests. There is no evidence relied upon as to the impact of a grant of limited leave to CS. As the Court of Appeal observed in Alladin and others, if the applicant seeks a longer period of leave in the exercise of the Respondent's discretion, he or she needs to do more than point to the fact that the application involves a child.

Conclusions

61. This is not a case where the Decision engages Article 8 ECHR. Even if the Decision engages that right, the Applicant has not shown how the Decision interferes with his rights to a sufficient extent to require justification of that interference by the Respondent.

62. Although I accept that the Respondent could and perhaps ideally should have explained in the Decision why she declined to exercise her discretion to grant ILR to CS, based on the material before her and applying the Policy, she was not required to do more than grant what the Rules require where an application succeeds under the Rules and therefore thirty months' leave. CS was the dependent on JS's application and therefore, in the absence of submissions and evidence setting out his case for ILR, it was not incumbent on the Respondent to do more than grant leave in line with JS.

63. That position is not affected by section 55, the Respondent's guidance or the Policy. It was for the Applicant (or more accurately his mother, JS, or their solicitors) to explain how the grant of limited leave would impact on his best interests. As the Respondent's pre-action response points out, it is open to JS and CS to make a further application on that basis at any time. In circumstances where they are due to apply for further leave later this year, it will be incumbent on them at that stage (if so advised) to make submissions as to why CS in particular should be granted ILR and to supply evidence explaining why his best interests require that course. However, based on the material before the Respondent and what was said to her at the time of the application, the Decision is not unlawful or unreasonable. There was no obligation to do more than grant what the Rules required. In light of what was before her, it was sufficient for the Respondent not to give reasons for the grant of thirty months which is the maximum period contained in the Rules and not to give separate reasons for not exercising her discretion to grant ILR.

64. For all of the above reasons, this application for judicial review is dismissed.

Signed Date 3 May 2016

Upper Tribunal Judge Smith