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

Under the seven-year child residence concession, the decision-maker must begin with a presumption that indefinite leave will normally be granted only in exceptional cases. The decision-maker must then assess whether the policy factors, individually or cumulatively, justify departure from that presumption.

A particularly poor immigration history, including absconding, deliberate delay and breach of arrangements intended to facilitate removal, may constitute exceptional circumstances. The welfare and United Kingdom ties of children must be recognised, but they do not automatically override immigration control. The legality of the decision is assessed by reference to the particular facts, rather than by comparison with other families.

The claimant, a Mongolian national, sought judicial review of the Secretary of State’s refusal to grant indefinite leave to remain to her and her three children under the seven-year child concession, DP5/96 as modified. The family had lived in the United Kingdom for several years, and one child had established strong educational and social ties here.

The Secretary of State relied on the claimant’s repeated absconding, non-compliance with reporting conditions, breach of an agreement to attend for removal and repeated challenges to removal. Earlier proceedings had been refused or withdrawn. The central issue was whether the Secretary of State’s conclusion that the case was an exception to the concession’s presumption was Wednesbury unreasonable.

1. The claim for judicial review was dismissed. The Secretary of State’s decisions in 2008 and 2009 were unchallengeable on Wednesbury grounds.

2. The governing approach was that identified in NF(Ghana) v Secretary of State for the Home Department EWCA Civ 906. The decision-maker had to begin with the presumption that refusal of indefinite leave after seven years’ residence would occur only in exceptional cases. The decision-maker then had to consider whether the policy factors, singly or cumulatively, made the case exceptional.

3. The relevant factors included the length of the parents’ residence without leave, delay caused by repetitive representations or going to ground, the children’s ages, whether they were conceived while a parent had leave, the hardship or health consequences of return, and criminal behaviour or deception.

4. The Secretary of State had applied that approach. The claimant’s immigration history was exceptionally poor. She and her family had absconded, failed to report, breached an agreement made to avoid further detention, and repeatedly sought to prevent removal. Those matters justified treating the case as exceptional, despite the children’s strong ties and the hardship that removal would cause.

5. The court rejected comparison with the facts of other cases as a basis for intervention. Each case had to be judged on its own facts. The children’s welfare did not automatically trump immigration control, since that would leave no meaningful judgment as to whether particular circumstances were exceptional.

6. By way of postscript, the judge stated that a further claim based on the youngest child’s later seven-year residence might amount to an abuse of process unless genuinely exceptional circumstances relating to that child emerged. The claim was certified as totally without merit. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment.

This was a first-instance judicial review claim. The judgment records that an earlier judicial review application was refused on 21 June 2006, a later application was withdrawn by consent on 20 May 2008, and the present claim was brought after the claimant’s detention on 15 December 2008.