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

An immigration application unaccompanied by the prescribed fee is invalid. It does not become an extant application capable of engaging transitional arrangements merely because it was submitted while a favourable policy remained in force.

In an Article 8 case involving a child, the decision-maker must treat the child’s best interests as a primary consideration and have regard to the statutory welfare duty. The substance of the decision matters more than whether it cites the relevant provisions. The best interests of the child remain capable of being outweighed by sufficiently strong competing considerations.

The claimants, a Guyanese family, sought judicial review of decisions refusing indefinite leave to remain. They relied on the withdrawn DP5/96 seven-year child concession and on Article 8 of the ECHR, particularly the private life and best interests of the younger son, who had lived in the United Kingdom since childhood.

An earlier application had been returned because it lacked the prescribed fee. A later valid application was made after DP5/96 had been withdrawn. The central issues were whether the earlier application engaged the transitional arrangements and whether the decision-maker had lawfully considered the younger son’s Article 8 rights and welfare.

1. DP5/96 and transitional arrangements. The earlier application was invalid because it was not accompanied by the prescribed fee. Regulation 21(1) of the Immigration and Nationality (Fees) Regulations 2007 provided that an application was not validly made unless accompanied by the specified fee. The transitional arrangements applied to valid or otherwise extant cases, not to an application which had been returned as invalid.
2. The reference in a later decision letter to the earlier document as an application did not amount to written acknowledgement of an application relying on DP5/96. The transitional examples were not exhaustive, but an invalid application could not properly be characterised as an extant case. AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240 did not establish a category of cases in which an invalid application triggered the transitional arrangements, and R (Forrester) v Secretary of State for the Home Department [2008] EWHC 2307 (Admin) did not lay down a general rule. The first ground therefore failed.
3. Article 8 and the child’s best interests. The younger son’s private life was engaged. Under Article 3(1) of the UNCRC, as reflected in section 55 of the Borders, Citizenship and Immigration Act 2009, the child’s best interests had to be treated as a primary consideration. An administrative immigration decision taken without regard to that requirement would not be in accordance with the law for Article 8(2) purposes.
4. The duty did not require a decision in accordance with the child’s best interests. Other considerations could outweigh them, provided that the decision-maker did not treat another consideration as inherently more significant. A failure to cite section 55 or the UNCRC was not, by itself, decisive; nor did merely setting out those provisions establish lawful consideration. The substance of the decision was required.
5. Although the decision letters could have addressed the younger son more specifically, the claimants had advanced only general assertions about his interests and ties. He would return with his parents and brother to Guyana, where he was born and of which he was a national, after completing secondary education. The second ground also failed. The claim was dismissed.

not stated in the judgment.