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

A seven-year residence policy for children creates a presumption against removal, but it does not operate automatically. Exceptional circumstances, including a poor immigration history and deliberate evasion of removal, may justify removal. In assessing a fresh human rights claim, the decision-maker must apply the correct test and must not impose an unlawfully high threshold merely by using language of exceptionality. The fact that a child has passed seven years’ residence does not, by itself, make removal disproportionate. The policy’s significance must be weighed alongside all circumstances relevant to proportionality.

The claimant, a Ghanaian national, sought permission to bring judicial review proceedings against refusal of her application for indefinite leave to remain. She relied on the residence of her child, who had lived in the United Kingdom for at least seven years, and advanced a fresh human rights claim under Article 8. The challenge alleged misapplication of the seven-year child policy and the wrong approach to the fresh claim and proportionality assessment.

1. Permission refused. The renewed application for permission to apply for judicial review had no reasonable prospect of success.
2. The Secretary of State had considered the seven-year child residence policy, including the claimant’s immigration history, the period of residence, the child’s circumstances and the possibility of hardship or health risks on return. The policy created a general presumption against enforcement where a child had been born in the United Kingdom and lived there continuously for seven years or more, but the presumption was qualified by exceptional circumstances.
3. The claimant’s deliberate evasion of removal and absconding were sufficient, in principle, to make the case exceptional. The Secretary of State was entitled to give those matters particular weight. The disputed finding concerning a temporary departure to Canada was not material to the decision.
4. The Secretary of State had applied the correct approach to the fresh human rights claim. References to the Court of Appeal’s Huang exceptionality language did not establish an unlawful threshold, since the language used reasonably reflected the House of Lords’ approach and had not been applied as a very high hurdle.
5. The child’s having passed seven years’ residence was relevant to proportionality but did not determine it. An immigration judge would have to weigh the policy’s significance against the claimant’s adverse immigration history and the fact that the family could return to Ghana. The tribunal would assess whether the Secretary of State’s decision was lawful and proportionate; it would not decide independently whether the policy applied.
6. The claim was therefore refused permission.

This was a renewed application for permission following refusal on paper by Hodge J. The High Court refused permission.