Daley-Murdock, R (on the application of) v Secretary of State for the Home Department

A judicial review of an immigration decision examines legality, rationality and procedural fairness, not the merits of the application. Where policy DP5/96 applies, the decision-maker must apply its exceptional-case presumption correctly. A decision under Nationality, Immigration and Asylum Act 2002, section 82(2)(d), requires a refusal to vary extant leave where the refusal causes the applicant to have no leave; it does not cover leave which expired before the application. A notice stating that a person is liable to removal is not itself a removal decision under section 82(2)(g). Article 8 requires a lawful assessment of the children’s education, links, likely circumstances and prospects on return.

The claimant, a Jamaican national, entered the United Kingdom with her family in 2001 and overstayed after her limited leave expired in 2002. In 2008 she applied for leave to remain relying on Article 8 of the Convention and policy DP5/96. The Secretary of State refused the application in July 2009 and later reconsidered the policy issue in February 2010. The claimant sought judicial review, challenging the lawfulness of the substantive decisions, the absence of an appeal right, and the failure to make a removal decision at the same time. The central issues were whether the decisions fell within section 82(2)(d) or (g) of the Nationality, Immigration and Asylum Act 2002, and whether the substantive assessments were lawful.

1. The claim succeeded in part. The July 2009 decision unlawfully applied policy DP5/96 because it misstated the policy. The February 2010 decision correctly identified the policy’s scope: where a parent has no leave and a child has at least seven years’ continuous residence, refusal of indefinite leave is appropriate only in exceptional cases.

2. The court’s function was supervisory. It was not conducting a merits appeal. The February 2010 assessment was lawful under DP5/96. The Secretary of State was entitled to take account of prolonged overstaying, delay, deception connected with obtaining national insurance numbers and employment, and the absence of extreme hardship or serious health risk on return. The claimant’s delay and alleged frustration of removal, even if established, were not by themselves exceptional, since such circumstances were typical of cases of this kind.

3. The Article 8 assessment was unlawful. The Secretary of State had failed adequately to assess the children’s educational needs, their links with Jamaica, the likely impact of removal and the practical circumstances of family relocation. The reference to a Jamaican sub-culture was unsupported and unexplained. This conclusion did not determine that the Article 8 claim must succeed; a lawful decision was required first.

4. The decisions were not immigration decisions under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. They conveyed liability or encouragement to leave, but did not decide that the family was to be removed. They were also outside section 82(2)(d). Following Suthendran v Immigration Appeal Tribunal, a refusal to vary leave does not attract that provision where the original leave had already expired. The refusal did not cause the claimant’s leave to end.

5. The absence of an immediate appeal right did not breach Article 8 and did not justify an interpretive reading under section 3 of the Human Rights Act 1998. The Secretary of State was not legally or irrationally required to make a removal decision at the same time. The sequential approach considered in JM v Secretary of State for the Home Department and TE (Eritrea) v Secretary of State for the Home Department arose in a materially different context involving applicants who still had lawful leave.