NF (Ghana) v Secretary of State for the Home Department

Where a child has lived continuously in the United Kingdom for at least seven years, the applicable immigration policy starts with a presumption that indefinite leave to remain will ordinarily be granted. The decision-maker must then decide whether the relevant countervailing factors make the case exceptional.

Even where the policy did not apply when the original immigration decision was made, its potential application at a later appeal is relevant to the proportionality assessment under European Convention on Human Rights article 8. The tribunal must focus distinctly on the qualifying child. A parent's poor immigration history is material and may outweigh the presumption, but it does not dispense with an individual assessment under the correct policy and article 8 standards.

NF, a Ghanaian national with a poor immigration history, appealed against the refusal of leave to remain. Her daughter, Obi, was born in the United Kingdom and had lived here continuously for more than seven years by the time of the tribunal proceedings.

An immigration judge dismissed NF's appeal without considering the seven-year child concession. Following an order for reconsideration, the Asylum and Immigration Tribunal identified an error of law but again dismissed the appeal. It considered the family collectively and proceeded on an incomplete version of policy DP 5/96.

The Court of Appeal had to decide whether the tribunal had properly considered the policy and focused sufficiently on the qualifying child when assessing proportionality under article 8 of the European Convention on Human Rights.

1. Appeal allowed and matter remitted. The Asylum and Immigration Tribunal made material errors in its reconsideration. NF's appeal was remitted for rehearing in the light of the Court of Appeal's judgment.

2. There was no separate policy called “DP 69/99”. The operative policy was DP 5/96, amended by substituting seven years for ten years and supplemented by the Home Office's 1999 policy modification statement and the ministerial parliamentary answer. The Secretary of State was bound by those materials.

3. Tribunals considering the policy's effect must start from the presumption that indefinite leave to remain will be withheld only in exceptional cases involving a child with the qualifying residence. They must then assess whether one or a combination of the specified factors makes the case exceptional. Those factors include the parents' unlawful residence, deliberate delay, the child's age, the parents' status when the child was conceived, serious hardship or health risks on return, and parental criminality or deception.

4. The tribunal failed to appreciate the nature of that policy discretion. It also failed to focus separately upon Obi, whose residence alone brought the policy into consideration. Its collective treatment of her and NF's three older children distracted from the qualifying child's position and undermined the weight which the policy might carry in the article 8 assessment.

5. The tribunal also applied the former Court of Appeal requirement of exceptional circumstances to article 8 proportionality. The subsequent House of Lords decision in Huang displaced that approach. This error compounded the risk of an unfair result arising from the policy errors.

6. NF's poor immigration history, including deception, was capable of outweighing the policy presumption. Nevertheless, the court could not conclude that dismissal was inevitable. The uncertainty surrounding the representations made after Obi turned seven reinforced the need for a rehearing. On remission, the Secretary of State could revisit whether Obi's father had leave when she was conceived.

1. Court of Appeal (Civil Division): The appeal was allowed and the case remitted to the Asylum and Immigration Tribunal for rehearing.

2. Asylum and Immigration Tribunal: On 27 February 2007, SIJ Warr and IJ Brown dismissed NF's appeal following full reconsideration.

3. Asylum and Immigration Tribunal: On 20 November 2006, the tribunal found an error of law and directed full reconsideration because the potential application of the seven-year child concession had not been addressed.

4. Administrative Court: On 5 October 2006, Burton J ordered reconsideration because it was unclear whether the policy had been considered in relation to the qualifying child.

5. Asylum and Immigration Tribunal: On 12 July 2006, SIJ Gleeson refused reconsideration, incorrectly proceeding on the basis that the child was only five.

6. Immigration Judge: On 21 June 2006, IJ Beg dismissed the appeal without considering DP 5/96 or the fact that the child had passed seven years of continuous residence.