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

A judicial review claim may be declined where the issue has become academic, unless there is a good public-interest reason to decide it. That exception is unlikely to apply where the issue is fact-sensitive, time-limited and no similar litigation is shown to exist or be anticipated. Immigration rules may be amended to apply to pending applications, provided the statutory parliamentary procedure is followed. An applicant has no legal right to have an application determined under the rules in force when it was made. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 may be discharged through the combined operation of the immigration rules and policy guidance. A 30-month grant under paragraph 276BE is not unlawful where the applicant sought that period and the Secretary of State remained able to consider a longer period outside the rules.

The claimants, a Nigerian family, sought judicial review of transitional provisions in HC 820, which applied changes to the private-life immigration rules to applications decided on or after 13 December 2012. They also challenged paragraph 276BE, arguing that its maximum 30-month grant of limited leave was incompatible with the duty to safeguard and promote children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009.

During the proceedings the children and parents were granted leave to remain until 5 January 2016. The challenge to HC 820 therefore became academic. The court nevertheless considered its merits, obiter, and determined the section 55 challenge.

1. Academic issue. The challenge to HC 820 was academic because the claimants had obtained leave and had suffered no continuing practical effect from the transitional provision. Applying R v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 and R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), there was no good public-interest reason to decide a fact-sensitive and time-limited issue in the absence of evidence of similar cases likely to require resolution. Ground 1 was dismissed on that basis.

2. Merits of ground 1. The court considered the challenge in case it was wrong on academicity, expressly treating its merits reasoning as obiter. Under section 3(2) of the Immigration Act 1971, the Secretary of State may amend the immigration rules from time to time, subject to the parliamentary procedure. Following Odelola v Secretary of State for the Home Department, the rules may apply to pending applications according to their stated commencement provision. An applicant’s expectation that the existing rules will apply does not create a legal right against later amendment. The timing of HC 820 and the asserted unfairness or capriciousness did not establish unlawfulness.

3. Section 55 and paragraph 276BE. The duty under section 55 must be considered when deciding whether to grant leave and, where relevant, its duration. However, R (SM & Anor) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) did not require the duty to be written into the rule itself. Paragraph 276BE could operate together with policy guidance and a residual discretion to grant longer leave outside the rules.

4. The Best Interests Guidance correctly required the child’s best interests to be a primary consideration and permitted a grant exceeding 30 months where appropriate. The claimants had applied for leave under paragraph 276ADE and had not sought a longer period before the decisions. The Secretary of State was therefore not required of her own motion to consider a longer grant. The claim was dismissed.

First-instance judicial review. No prior appellate decision is stated in the judgment.