Suleiman, R (on the application of) v Secretary of State for the Home Department

An extra-statutory immigration policy creating a general presumption in favour of families whose children have lived continuously in the United Kingdom for seven years requires a two-stage approach. The decision-maker must first recognise the presumption and the balance already struck between children’s disruption and immigration control. The decision-maker must then decide, in all the circumstances, whether a strong reason justifies departing from it. A particularly poor immigration history and serious deception may provide such a reason, but their nature and effect must be identified and weighed against the children’s circumstances. Judicial review of a decision engaging family life requires attention to the balance struck and the relative weight given to competing considerations. A decision letter must contain sufficient reasoning to permit that scrutiny.

The claimant sought judicial review of a March 2006 decision refusing to apply the Secretary of State’s policy concerning families with children who had lived in the United Kingdom for at least seven years. Earlier refusal letters had been withdrawn and reconsidered after permission was granted on renewed application. The claimant relied on the children’s residence, health and schooling, and evidence concerning the youngest child. The Secretary of State relied principally on the parents’ immigration history, deception and delay.

The central issues were whether the policy’s presumption had been properly applied, whether there was a strong reason to depart from it, and whether the decision letter adequately explained the balancing exercise.

1. Policy framework. The policy establishes a general presumption against enforcement action where a child born in the United Kingdom has lived there continuously for seven years, or has accumulated seven years’ continuous residence after arriving young. The presumption reflects a general balance between the likely disruption to the child and the requirements of immigration control.
2. Departure from the presumption. The decision-maker must identify a strong or good reason for departure and undertake an all-the-circumstances, judgmental balancing exercise. The policy’s listed factors are not exhaustive. A particularly poor immigration history, serious deception and deliberate serious delay may justify disapplication, but the decision-maker must focus on the nature and effect of the conduct and assess its weight against the children’s circumstances. The approach in ex parte Jagot [2000] INLR 501 was explained in this way, and Baig [2005] EWCA Civ 1246 confirmed that serious abuse may be an overwhelming factor in an appropriate case.
3. Intensity of review. In a decision affecting family life, the court must apply the more intensive approach described in Mahmood [2001] 1 WLR 840 and clarified in Daly [2001] 2 AC 532. The court must assess the balance struck and the relative weight given to competing interests, while recognising that it is not conducting a merits review. The decision letter should be read generously, but it must still disclose the reasoning necessary for effective scrutiny.
4. The decision letter failed to identify adequately which aspects of the claimant’s conduct were relied on, how the alleged delay had been caused, and what weight had been given to the particular difficulties concerning the youngest child. It therefore did not withstand the required scrutiny.
5. The ordinary remedy would have been to quash and remit the decision. Because further delay would itself cause hardship, the application was adjourned and directions were given for further representations and a reasoned reconsideration, with relisting before the judge if possible. The claimant was treated as successful to the date of judgment and awarded costs to that stage; later costs were reserved.

The matter was a first-instance judicial review. Permission was initially refused by Collins J on the papers, then granted on renewal by Silber J after the earlier refusal decisions had been withdrawn and reconsidered.