Secretary of State for the Home Department v Rahman

A minister may review, alter or revoke a non-statutory immigration policy whenever the public interest requires, subject to ordinary public law constraints. A person who neither invoked nor relied upon the policy before its lawful withdrawal does not acquire a right to its continued application merely by satisfying its substantive residence criterion.

In the absence of a promise or established practice of consultation, withdrawal of such a policy does not ordinarily require consultation or advance notice. Transitional arrangements may rationally preserve the policy only for cases in which it had arisen for consideration before withdrawal. Seven years’ residence by a child does not itself make removal incompatible with article 8 of the European Convention on Human Rights.

Three linked proceedings concerned the immediate withdrawal of the seven-year child concession, DP 5/96. The policy had generally favoured families containing a child with seven years’ continuous residence, subject to countervailing circumstances.

HHJ Bidder QC quashed the refusal of Mahbubur Rahman’s application and directed reconsideration under the withdrawn policy. He held that the family, which had completed seven years’ residence before withdrawal but applied afterwards, had something akin to an accrued right. The judge dismissed Fauzia Abbassi’s judicial review claim. David Holgate QC, sitting as a deputy High Court judge, refused Muhammad Munir permission to seek judicial review in [2010] EWHC 2894 (Admin).

Although all three families were subsequently granted three years’ discretionary leave, the proceedings continued to determine whether DP 5/96, its withdrawal or its transitional arrangements entitled them to consideration under the former policy.

1. The Secretary of State’s appeal was allowed. Mr Munir’s appeal was dismissed and Mrs Abbassi was refused permission to appeal. None of the families was entitled to have DP 5/96 applied after its withdrawal.

2. The argument that withdrawal of DP 5/96 changed the Immigration Rules proved too much. If withdrawal required the procedure in section 3(2) of the Immigration Act 1971, the policy itself should also have been laid before Parliament. It had not been. The court therefore did not need finally to decide whether DP 5/96 was a rule within section 3(2), although that conclusion was well arguable.

3. The circumstances in which a duty to consult arises without an express or implied promise or established practice are extremely narrow. There was no specific class which the Secretary of State was legally required to consult and no principled foundation for such a duty. Nor was she required to give advance notice before revoking the policy.

4. A minister is entitled to review, alter or revoke a policy whenever the public interest requires. The Secretary of State could rationally regard DP 5/96 as encouraging people with irregular status to avoid immigration control until the residence period expired. Children’s interests remained capable of consideration under the Immigration Rules and article 8 of the European Convention on Human Rights.

5. The transitional provisions rationally distinguished cases in which DP 5/96 had arisen for consideration while operative from applications first made after withdrawal. None of the applicants fell within those provisions. Completion of seven years’ residence did not create an accrued right to the policy’s future application.

6. Mr Rahman had not relied upon the policy before its withdrawal. His deceptive entry and subsequent failure to regularise his family’s position also prevented any claimed expectation from being legitimate. The refusal to apply DP 5/96 was neither conspicuously unfair nor an abuse of power.

7. DP 5/96 did not establish that every qualifying family was necessarily entitled to remain under article 8. Depending on the circumstances, lawful immigration control could require the departure of children resident for more than seven years.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 814, allowed the Secretary of State’s appeal in Rahman, dismissed Mr Munir’s appeal and refused Mrs Abbassi permission to appeal.
• Administrative Court: HHJ Bidder QC quashed the refusal of Mr Rahman’s application and directed reconsideration under DP 5/96, but dismissed Mrs Abbassi’s judicial review claim. David Holgate QC, sitting as a deputy High Court judge, refused Mr Munir permission to seek judicial review in [2010] EWHC 2894 (Admin).