Abbassi & Ors, R (on the application of) v Secretary of State for the Home Department

The withdrawal of a public immigration concession may be unlawful where persons had already accrued the qualifying conditions before withdrawal and were given no reasonable warning. Under DP 5/96, seven years’ qualifying residence created a presumption that indefinite leave to remain would be granted, subject to exceptional circumstances identified in the policy. The concession was not confined to cases in which removal proceedings had begun. Paragraph 395C of the Immigration Rules concerns the separate decision whether to remove and need not be considered when leave to remain is refused before removal proceedings commence. The former policy may remain relevant to later removal and Article 8 assessments, but it does not require leave to be granted automatically. The best interests of children are a primary, but not paramount, consideration.

Three conjoined judicial review claims challenged refusals of leave to remain made by the Secretary of State in relation to families from Bangladesh, Pakistan and Ghana. The claims concerned the withdrawal on 9 December 2008 of the seven-year children concession, DP 5/96, and its transitional arrangements.

The claimants argued that the withdrawal was unlawful, that paragraph 395C of the Immigration Rules had to be considered when leave was refused, that the former policy required leave to be granted or remained a decisive factor, and that differential treatment breached Article 14 of the European Convention on Human Rights. Ms Adams’s case was accepted to fall within the transitional arrangements because enforcement action had begun before withdrawal.

1. DP 5/96. The policy created a general presumption that, where a child had accrued seven years’ continuous residence, indefinite leave to remain would be granted unless particular circumstances made enforcement appropriate. The relevant factors included the parents’ immigration history, the children’s ages and circumstances, hardship on return, and criminality or deception. The policy was not limited to cases in which removal proceedings had already begun. Its established practice of granting indefinite leave formed part of the policy.
2. Withdrawal and accrued entitlement. Mr Rahman’s family had completed seven years before withdrawal and belonged to a class which had accrued an entitlement, properly described as akin to an accrued right. Given the clear policy and absence of warning, refusing to apply DP 5/96 to that class was conspicuously unfair and amounted to an abuse of power. Ms Adams’s family was in the stronger position because enforcement action had already begun. Their decisions were quashed and reconsideration under DP 5/96 was ordered.
3. Transitional arrangements. The examples in the transitional arrangements were not necessarily exhaustive. Nevertheless, the Secretary of State was not irrational in concluding that Mr Rahman’s case did not fall within them.
4. Paragraph 395C and Article 8. Paragraph 395C concerns the separate discretionary decision whether to remove. It need not be considered before removal proceedings have commenced. The former concession, or the considerations underlying it, may remain relevant under paragraph 395C and Article 8, but it does not make the grant of leave the only rational outcome. The children’s best interests are a primary consideration, not the paramount consideration, and must be balanced with immigration history and other relevant factors.
5. Article 14 and outcome. The distinction between persons considered under DP 5/96 because enforcement action was pending and those not facing enforcement action did not constitute discrimination on an Article 14 ground. In any event, the distinction was justified. Mrs Abbasi’s claim was dismissed.

First-instance judicial review proceedings. The judgment records the grant or refusal of permission in the individual claims, but no prior appellate decision.