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

Where an asylum claimant is liable to removal and an adjudicator has found that removal would breach Article 8, the Secretary of State must consider the principles of the seven-year child concession when deciding what form of leave should be granted. The fact that discretionary leave is available under the general human-rights policy does not remove that obligation. The concession does not itself require indefinite leave to remain. It requires the Secretary of State to take the relevant principles into account and then decide what category and duration of leave are appropriate.

The claimant, a Polish national of Roma descent, challenged the Secretary of State’s decision to grant her three years’ discretionary leave following an adjudicator’s decision that her removal would breach Article 8 of the ECHR. The claimant relied on the seven-year child concession policy because two of her children had spent the requisite period in the United Kingdom.

The Secretary of State treated the concession as relevant only before enforcement or removal and considered that discretionary leave under the separate policy was sufficient. The central issue was whether the claimant’s case remained a removal case, requiring consideration of the concession principles.

1. Judicial review allowed. The decision to grant three years’ discretionary leave could not stand as the final decision on the appropriate category of leave.
2. The seven-year child concession policy, DP5/96, applied on its face to deportation, administrative removal and removal as an illegal entrant. It did not prescribe whether leave should be indefinite or limited. The Secretary of State nevertheless accepted that its underlying principles were taken into account in relevant removal contexts.
3. The claimant’s case was within that context. Her asylum claim had been refused with removal directions, she had appealed against the refusal, and the adjudicator had allowed the Article 8 ground by finding that removal would breach the United Kingdom’s Convention obligations. The fact that the Secretary of State had to decide what to do after that decision, and might not in practice remove her, did not alter the removal context.
4. The Secretary of State therefore erred in law by applying only the discretionary-leave policy and failing to consider the seven-year child concession principles when responding to the adjudicator’s decision. The cases of MA (Seven Year Child Concession) Pakistan, [2005] UKIAT 00090, and R (Ahmed) v Secretary of State for the Home Department were relevant comparisons. It was unnecessary to decide the wider question whether the concession applied where removal was not otherwise in issue, including the approach discussed in R (Mobin Jagot) v Secretary of State for the Home Department.
5. The mandatory order was to require the Secretary of State to consider the seven-year child concession relating to the children when deciding what relief or leave should be granted. The order did not require the grant of indefinite leave to remain. The Secretary of State was to pay the claimant’s costs, subject to detailed assessment if not agreed.

The case was a first-instance judicial review. An adjudicator had previously allowed the claimant’s appeal on the ground that removal would breach Article 8, while rejecting her asylum appeal. The Administrative Court quashed the legal effect of the Secretary of State’s subsequent decision by requiring reconsideration in accordance with the seven-year child concession principles.