Alladin, R (on the application of) v Secretary of State for the Home Department

A staged route from discretionary leave to remain to indefinite leave to remain is lawful in principle. Section 55 of the Borders, Citizenship and Immigration Act 2009 applies both to the decision whether to grant leave and to its duration. The best interests and welfare of children must be considered first, but remain a primary, not exclusive, consideration. They may be outweighed by public-interest factors. An unlawful policy does not automatically invalidate a decision made under it. Judicial review requires a realistic prospect that lawful reconsideration would produce a different result. The Secretary of State may consider indefinite leave even where discretionary leave is also available.

Two appeals concerned grants of discretionary leave to remain instead of indefinite leave to remain. Ms Alladin and her family had sought indefinite leave outside the Immigration Rules, relying on article 8, but received three years’ discretionary leave. Mr Wadhwa and his family had applied for discretionary leave and later challenged a grant of 30 months’ discretionary leave; they had not clearly requested indefinite leave.

In Alladin, HHJ Allan Gore QC dismissed the judicial review claim: [2013] EWHC 1406 (Admin). In Wadhwa, Upper Tribunal Judge Warr refused permission to apply for judicial review. The Secretary of State accepted that the policy in force was unlawful to the extent that it prevented case-specific consideration of children’s welfare. The central issue was whether either grant should be quashed or reconsidered.

1. Both appeals dismissed. The accepted unlawfulness of the staged discretionary-leave policy did not make either decision unlawful. Judicial review required a real prospect that reconsideration under lawful guidance would produce a different result.
2. Section 55 of the Borders, Citizenship and Immigration Act 2009 applied both to the decision whether to grant leave and to the decision concerning its duration. The Secretary of State was entitled in principle to adopt a staged route to settlement. Even where children are applicants, an immediate grant of indefinite leave is not automatically required.
3. The children’s best interests and welfare had to be considered first and placed in the balance. They were not the only considerations. Relevant public-interest factors included maintaining lawful compliance, avoiding an immediate route to permanent residence outside the Immigration Rules, and retaining an opportunity to review whether further leave remained appropriate.
4. In Alladin, the only identified welfare disadvantage was difficulty obtaining visas for school trips. That was tangible but limited, principally affecting the adults and confined to any period of administrative limbo. The supplementary decision letter considered the welfare question and weighed any limited benefit of indefinite leave against the public interest. Read as a whole, it did not unlawfully subordinate the children’s interests to policy.
5. The Immigration Directorate Instructions did not prevent consideration of indefinite leave where discretionary leave was also available. The assessment of the duration of leave was not a linear process. The Secretary of State had considered indefinite leave and lawfully rejected it on the facts.
6. In Wadhwa, indefinite leave had not been requested and the supporting material identified no disadvantage arising from discretionary rather than indefinite leave. The Secretary of State was entitled to treat the discretionary grant as satisfying the application. Upper Tribunal Judge Warr was right to refuse permission.

There was no material illegality warranting the quashing of either decision.

• Court of Appeal (Civil Division): dismissed both appeals.
• High Court, Administrative Court: HHJ Allan Gore QC dismissed Alladin’s judicial review claim: [2013] EWHC 1406 (Admin).
• Upper Tribunal: Upper Tribunal Judge Warr refused Wadhwa permission to apply for judicial review.