Rudi & Anor v Secretary of State for the Home Department

The exclusion of former unaccompanied minors, now adults, from the Family ILR Exercise was not unlawful discrimination. The Court of Appeal’s decision in AL (Serbia) v Secretary of State for the Home Department established that the distinction was justified by the Exercise’s lawful rationale. The same reasoning defeated the common law rationality challenge.

A policy designed for limited categories of family cases cannot generally be extended by analogy to near-miss cases merely because some aspects of its rationale apply. Delay in deciding an immigration claim may strengthen private or family life, but where the claimant has no potential right under immigration law, its effects must be very substantial before it can affect the Article 8 assessment.

The claimants were Kosovan nationals of Albanian ethnicity who had arrived in the United Kingdom as unaccompanied minors and whose asylum and human rights claims had failed. They challenged refusals to grant leave under the Secretary of State’s Family ILR Exercise, arguing that excluding former unaccompanied minors discriminated against them compared with persons who had arrived with their parents.

Mr Ibrahimi also challenged the refusal to treat further representations, based on delay, developing private and family life, and the failure to grant exceptional leave, as a fresh claim. The central issues were whether the Family ILR Exercise was unlawful in excluding the claimants and whether the further representations disclosed an arguable fresh claim.

1. Family ILR Exercise. The claims challenging exclusion from the Exercise failed. The Court of Appeal’s decision in AL (Serbia) v Secretary of State for the Home Department ([2006] EWCA Civ 1619) concerned an individual in materially the same position and was binding. It held that the relevant discrimination was justified by the evidence concerning the Exercise’s rationale.
2. The Exercise was directed principally at family cases because granting leave could relieve public support costs, family removals were administratively and financially difficult, removal could involve detention and the separation of children, and families could have developed community and educational ties. Unaccompanied minors generally had different support arrangements and were more readily removable as adults. The August 2004 extension adjusted the existing policy as families and their children became adults; it did not require a wholly separate rationale.
3. The common law challenge, framed as treating like cases alike or as irrationality, stood or fell with the Article 14 justification. The claimants identified no distinct issue outside the ratio and necessary implications of AL (Serbia). The extension was not shown to be irrational.
4. Mr Ibrahimi’s fresh claim. The Family ILR Exercise was lawful but did not apply to him. Under Mongoto v Secretary of State for the Home Department ([2005] EWCA Civ 751), an Immigration Judge could not expand a humane but limited policy to cover near misses merely because aspects of its rationale applied. Shkembi v Secretary of State for the Home Department ([2005] EWCA Civ 1592) did not establish such an extension.
5. Applying the principles summarised in HB (Ethiopia) and Others v Secretary of State for the Home Department ([2006] EWCA Civ 1713), the delay was inordinate but had not deprived Mr Ibrahimi of a procedural or substantive right or produced sufficiently substantial effects. His relationships and the passage of time did not make removal disproportionate or exceptional. Any appeal would inevitably fail, so there was no arguable fresh claim. Both applications were dismissed.

The judgment records no appeal from the present proceedings. It applied the binding Court of Appeal decision in AL (Serbia) v Secretary of State for the Home Department ([2006] EWCA Civ 1619).