Acan, R (on the application of) v Immigration Appeal Tribunal

Rule 301 of the Immigration Rules 1994 concerns children joining persons granted limited leave with a view to settlement under specified earlier provisions. It does not extend automatically to children of a person granted exceptional leave outside the Rules. That construction does not itself breach Convention rights, because the Secretary of State retains a discretionary power which remains subject to legality and human-rights review.

In assessing proportionality under Article 8, culpable administrative delay and its effect on family life are material considerations. An appellate tribunal must address an arguable delay-based proportionality ground where it has a realistic prospect of success.

Four Ugandan children sought entry clearance to join their sponsor in the United Kingdom. The sponsor had been granted four years’ exceptional leave to remain outside the Immigration Rules. The Secretary of State refused the applications, and an adjudicator dismissed the appeals. The Immigration Appeal Tribunal refused leave to appeal, holding that rule 301 did not apply and that there was no arguable proportionality issue.

The claimants sought judicial review. The central questions were whether rule 301 covered children of a person granted exceptional leave and whether the authorities had properly considered the effect of delay on the claimants’ Article 8 family life.

1. Construction of rule 301. The words “limited leave with a view to settlement” were capable, in isolation, of covering the sponsor’s status. However, the structure and purpose of Part 8 showed that rule 301 referred to the categories created by earlier rules using that expression, particularly rules 281, 282, 295A and 295B. Exceptional leave granted outside the Rules therefore did not fall within rule 301.
2. The absence of a rule expressly providing for children in this position did not itself breach the Human Rights Act 1998 or the Convention. Exceptional leave was granted in the Secretary of State’s discretion, and the exercise of that discretion remained subject to rationality, legality and Convention rights. The Rules did not need to be construed differently merely to fill an arguable gap.
3. The court indicated that, if necessary, the two non-biological children would not have satisfied the Rules’ definition of a parent because their circumstances amounted to informal adoption outside the specific adoption provisions. Nevertheless, they formed part of the sponsor’s family unit for Article 8 purposes.
4. Delay and proportionality. Delay was not automatically decisive and the principle in Shala could not simply be transposed because the factual circumstances differed. Nevertheless, the responsibility for delay, its duration and its effect on the children’s opportunity to resume family life were relevant to proportionality. The adjudicator had failed to consider that material factor.
5. The IAT therefore erred in concluding that there was no arguable ground of appeal. The refusal of leave was quashed and the matter remitted for reconsideration. The claimants received their costs, with liberty to apply.

• Adjudicator: dismissed the claimants’ appeals against refusal of entry clearance.
• Immigration Appeal Tribunal: on 4 April 2003 refused leave to appeal, holding that rule 301 did not apply and that there was no arguable proportionality error.
• High Court (Administrative Court): quashed the refusal of leave and remitted the matter for reconsideration.