Baig v Secretary of State for the Home Department

The policy concerning children continuously resident in the United Kingdom for seven years creates a general presumption against enforcement action, but every case remains subject to assessment on its individual merits. The presumption may be displaced by factors including lengthy parental residence without leave, deliberate delay or absconding, conception while the parents lacked leave, and a history of deception.

An appellate court need not remit a case following a legal error where application of the correct policy could rationally produce only one conclusion.

The applicant entered the United Kingdom unlawfully and later claimed asylum and human rights protection. She relied on the Secretary of State's policy concerning the removal of families whose children had accumulated seven years' continuous residence.

An adjudicator dismissed the asylum and human rights claims but wrongly declined to consider the policy because it had not been properly pleaded. The Immigration Appeal Tribunal dismissed the ensuing appeal, believing that the policy had already been considered in connection with the family.

The applicant sought permission to appeal. The central issues were whether the tribunal had failed to correct a public law error and, if so, whether the matter should be remitted for substantive application of the policy.

1. The application for permission to appeal was dismissed. The court assumed, without deciding, that the Immigration Appeal Tribunal had omitted to address an error by the adjudicator and that remittal would prima facie have been appropriate.

2. Errors of public law fall within the jurisdiction of the Immigration Appeal Tribunal and, consequently, within the Court of Appeal's jurisdiction under Section 101(1) of the 2002 Act. The decision in HC [2005] EWCA Civ 893 had put any doubt on that question to rest.

3. The relevant policy was derived from the departmental instruction DP5/96 read with the 1999 ministerial statement reducing the qualifying period from ten years to seven. It established a general presumption that enforcement action would not usually proceed where a child had been born in the United Kingdom and lived there continuously to the age of seven, or had accumulated seven years' continuous residence after arriving at an early age. Each case nevertheless had to be considered on its merits.

4. The presumption could be displaced where enforcement remained appropriate. Relevant considerations included the parents' residence without leave, delay caused by repetitive representations or going to ground, the children's ages, whether they were conceived while a parent had leave, the risk of extreme hardship or serious harm to their health, and parental criminality or deception.

5. Only one rational conclusion was available on the facts. Both parents had resided unlawfully for long periods. Removal had been delayed by the husband's absconding and by proceedings which the adjudicator found had been brought to prolong the family's stay. Neither relevant child was conceived while the parents had leave, and the case involved sustained deception and failure to comply with immigration requirements. The policy therefore did not prevent enforcement.

6. Because a rational adjudicator could reach no other conclusion under the correct policy, remittal would serve no purpose. The applicant was ordered to pay the defendant's costs, subject to detailed assessment under Section 11 of the Access to Justice Act.

• Court of Appeal (Civil Division): Refused permission to appeal and declined to remit the case because application of the correct policy could rationally produce only one conclusion.

• Immigration Appeal Tribunal: Dismissed the applicant's appeal. It concluded that the seven-year policy had already received substantive consideration, although it misunderstood which spouse had made the earlier application.

• Adjudicator: Dismissed the asylum and human rights appeals. The adjudicator wrongly declined to consider the seven-year policy because of a defect in the grounds of appeal.