Dabrowski & Ors, R (On the Application Of) v Secretary of State for the Home Department

A long-residence policy may be applied by analogy to port refusal cases where the Secretary of State accepts that approach. The policy does not create an automatic entitlement to leave. Each case must be assessed on its individual merits.

Continuity of residence may be broken by a return to the country of origin after a failed asylum claim, where the family expected to remain there. A later return to the United Kingdom does not necessarily restore continuity. If the seven-year concession does not apply, the decision-maker must still consider exceptional leave without the policy presumption. The refusal will stand if that discretion has been lawfully and adequately reasoned.

The applicants were a mother and her two sons, who had arrived from Poland, claimed asylum, returned there after the first claim failed, and re-entered the United Kingdom three months later. Their second asylum claim and later human rights application failed. They sought exceptional leave under the Home Secretary’s seven-year long-residence policy, but the application was refused on the basis that the policy applied only to enforcement cases and not to port cases.

Permission to seek judicial review was refused by Silber J on the papers and by Rafferty J on renewal in open court. The Court of Appeal directed that the substantive judicial review proceed before it. The Secretary of State accepted that the policy should be treated as applicable by analogy to port cases. The central issues were whether the family fell within the seven-year concession and whether the refusal was adequately reasoned.

1. Disposition. The Court of Appeal unanimously dismissed the application for judicial review. The formal order was that the application be refused.
2. Port cases and the policy. Sedley LJ accepted the Secretary of State’s evidential concession that DP 5/96, as modified in 1999, should be treated as applicable to port cases. This avoided deciding the policy’s literal ambit independently. Simon Brown LJ noted that the earlier authorities treated the policy as applying strictly to deportation and administrative removal of illegal entrants, while the Home Office had properly applied it by analogy to port refusal cases. Laws LJ stated that, without the evidence and concession, he would not necessarily have considered the limitation legally objectionable.
3. Individual merits and continuity. The policy required an individual assessment. The Home Office instructions permitted continuity to be treated as broken where an applicant left intending to remain abroad or had severed strong ties with the United Kingdom. The family had returned to Poland after the first asylum claim failed, with no further entitlement to remain and an expectation of staying there. The later return following renewed violence did not repair the discontinuity. The family therefore fell outside the seven-year concession.
4. Effect of the children’s position. Port cases had no generic disadvantage under the policy. Whether children themselves had a right to remain could be highly relevant, but the absence of such a right did not by itself justify removal. The whole factual situation had to be assessed.
5. Exceptional leave and reasons. Because the policy did not apply, there was no policy presumption in favour of leave. The Secretary of State nevertheless considered whether exceptional leave should be granted on the facts generally. The letters addressed the family history, hardship, family ties, Article 8, proportionality and the timing of the claim. They contained adequate reasoning and were not vulnerable to judicial review.
6. Obiter transparency observation. Sedley LJ criticised the former practice of important immigration policies becoming known only through leakage and expressed the view that policies governing significant statutory or prerogative discretions should be promulgated openly.

• Court of Appeal (Civil Division): Permission was granted for the substantive judicial review to proceed in the Court of Appeal. The application was refused. [2003] EWCA Civ 580
• High Court, Queen’s Bench Division, Administrative Court: Silber J dismissed the application for permission on the papers. Rafferty J dismissed the renewed application in open court in October 2002.