Alladin v Secretary of State for the Home Department

A Secretary of State may lawfully operate a policy governing discretionary leave and leave outside the Immigration Rules, provided that it is applied lawfully, rationally and with regard to relevant rights. A decision is not invalid merely because it does not expressly mention section 55 of the Borders, Citizenship and Immigration Act 2009. The written decision must make clear that the substance of the duty to safeguard and promote children’s welfare was discharged. Where discretionary leave is granted, the court may infer that relevant section 55 and Article 8 considerations were accepted. If the applicable policy criteria for indefinite leave are not met, the grant of discretionary leave may nevertheless represent the most beneficial outcome permitted by the lawful policy.

The claimant and her family sought judicial review of decisions granting them discretionary leave to remain until 14 June 2014 rather than indefinite leave to remain. Their applications had been made while they were lawfully present, but the claim was in substance a collateral challenge to earlier decisions. The issues were whether the decisions breached section 55 of the Borders, Citizenship and Immigration Act 2009, were inconsistent with published policy, or failed to give adequate reasons.

The Secretary of State accepted that the family did not qualify under the Immigration Rules. The central question was whether, despite that failure, the circumstances required indefinite leave to remain or rendered the grant of discretionary leave unlawful.

1. Application dismissed. The Secretary of State’s decisions were not unlawful on any of the three grounds advanced.
2. The Court of Appeal authorities in EF v Secretary of State for the Home Department [2010] EWCA Civ 2003 and IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787, together with the reasoning of Gibbs J in R (on the application of Shahid) v Secretary of State for the Home Department [2004] EWHC 2550, established that the Secretary of State was entitled to maintain a policy governing discretionary leave. The policy comprised the Asylum Policy Instruction and the relevant Immigration Directorate’s Instructions.
3. The policy had to be applied lawfully, rationally and sensitively, including by taking account of the children’s interests under section 55 and the family’s rights under Article 8 of the European Convention on Human Rights. The court inferred from the grant of discretionary leave in all six cases that the Secretary of State had accepted the section 55 and Article 8 submissions. The absence of an express reference to section 55 therefore did not make the decisions unlawful.
4. The court applied the approach in R (on the application of TS) v Secretary of State for the Home Department and Northamptonshire County Council [2010] EWHC 2614 and AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191: express reference to section 55 was unnecessary if the decision made clear that the substance of the duty had been discharged.
5. The policy required consideration first of the Immigration Rules, Humanitarian Protection and discretionary leave. Leave outside the Rules was a residual discretion available only where those gateways were unavailable. Since the family had received discretionary leave, the policy had been properly applied and no separate duty to give reasons arose from an alleged refusal to apply the policy.

Costs were summarily assessed at £6,400. Permission to appeal was refused.

Permission for judicial review had been granted by HHJ Thornton QC on 19 March 2012. The High Court (Administrative Court) dismissed the substantive application and refused permission to appeal.