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

Where an immigration appeal concerns a specific application for indefinite leave to remain and is allowed without limiting directions, the decision will ordinarily require the grant of the leave sought. The absence of directions under section 87 of the Nationality, Immigration and Asylum Act 2002 does not, by itself, permit the Secretary of State to substitute discretionary leave. A lesser grant may be justified by the Immigration Judge’s express findings or directions, but the Secretary of State should obtain clarification where the effect of the determination is uncertain. The decision is fact-sensitive and does not establish a general rule that every allowed Article 8 appeal requires indefinite leave.

The claimants sought judicial review of the Secretary of State’s decision to grant them three years’ discretionary leave to remain after an Immigration Judge had allowed their appeal. Their original application had been for indefinite leave to remain on exceptional and compassionate grounds, principally because of the effect removal would have on the daughters’ education and family life under Article 8 of the Convention.

The Immigration Judge gave no direction under section 87 of the Nationality, Immigration and Asylum Act 2002 and did not expressly limit the duration of leave. The central issue was whether the Secretary of State had lawfully implemented the determination by granting only discretionary leave.

1. Claim granted. The court declared that the only proper way to implement the Immigration Judge’s decision was to grant all three claimants indefinite leave to remain. The Secretary of State was ordered to pay the claimants’ costs, subject to detailed assessment if not agreed, excluding the cost of copying the entire Immigration Act.
2. The Immigration Judge may give directions under section 87 of the Nationality, Immigration and Asylum Act 2002, and the person responsible for making the immigration decision must comply with any relevant direction. Directions are not indispensable to the binding effect of an allowed appeal.
3. The court applied the reasoning in R v Secretary of State for the Home Department, ex parte Boafo [2002] EWCA Civ 44. An adjudicator’s decision allowing an appeal concerning a specific application for indefinite leave remained binding despite the absence of directions. The Secretary of State could not reconsider the issue and grant a different form of leave, absent a proper basis such as fresh evidence or clarification of the determination.
4. The case was distinguished from Shahid v Secretary of State [2004] EWHC 2550 (Admin). There the application had been for exceptional leave, not indefinite leave, and the grant of three years’ discretionary leave was not inconsistent with the adjudicator’s findings on Article 8.
5. The Immigration Judge had not limited the grant to the period needed for the daughters to complete their education. The fact that the daughters were close to qualifying under the seven-year policy was one of the factors relied upon in allowing an appeal against refusal of indefinite leave. In the circumstances of this case, the Secretary of State therefore had to grant the leave sought.
6. The court emphasised that the result was dictated by the particular circumstances and was not to be treated as a general precedent. Where the effect of a determination is genuinely uncertain, either party should seek clarification from the Immigration Judge and, if necessary, specific directions.

Not stated in the judgment.