Bibi & Ors, R (on the Application of) v Secretary of State for the Home Department

The Secretary of State may adopt a staged route to settlement and is not generally required to grant indefinite leave to remain on a first application, including where children are involved. The best interests of each child must be treated as a primary consideration, but they must be balanced against effective immigration control and other relevant public interests. An applicant seeking discretionary indefinite leave must provide evidence showing why a longer period of leave is required. General assertions about inconvenience, travel visas, student finance or uncertainty will not establish irrationality. The court will uphold a decision granting discretionary leave where the Secretary of State has considered the individual circumstances, the children’s best interests and the evidence provided.

The claimants, a mother and her three children, challenged decisions refusing indefinite leave to remain under paragraphs 319E and 319J of the Immigration Rules. They had entered the United Kingdom as dependants of a work permit holder but later became overstayers after failing to obtain further leave as dependants of a points-based-system migrant. The Secretary of State granted discretionary leave instead, placing them on a route to settlement.

The claimants argued that discretionary leave caused disadvantage through school travel requirements, possible student-finance difficulties, uncertainty and disruption to the children’s integration. The central issue was whether the decisions to grant discretionary leave rather than indefinite leave were unlawful, irrational or contrary to the children’s best interests.

1. Claim dismissed. Relief was refused and costs were awarded to the defendant.
2. The Secretary of State had a wide statutory discretion under sections 3, 3A, 3B and 3C of the Immigration Act 1971 to grant limited or indefinite leave outside the Immigration Rules. A policy requiring a qualifying period of discretionary leave before indefinite leave may be granted was lawful and rational.
3. The best interests of each child had to be treated as a primary consideration. That did not require indefinite leave to be granted on a first application. The benefits of immediate settlement had to be balanced against the public interest in effective immigration control. An applicant seeking departure from the staged policy had to provide evidence showing why a longer period of leave was required in the child’s best interests.
4. The revised discretionary-leave policy permitted case-specific consideration and did not unlawfully prevent consideration of indefinite leave. The Secretary of State had considered the children individually, their ages, integration, living requirements and the evidence available.
5. The asserted disadvantages were unsupported by sufficient evidence. There was no evidence of an imminent study tour, an inevitable practical detriment from obtaining visas, a real difficulty in obtaining student finance, or specific distress and anxiety caused by discretionary leave. Alternative finance and travel visas were available. The Secretary of State was entitled to conclude that discretionary leave was proportionate.
6. The judge also rejected the submission that the claimants’ overstaying involved no fault capable of affecting the balance. There was a spectrum of fault, although it was unnecessary to determine the issue conclusively.

This was a first-instance judicial review. Permission was granted on 7 September 2012, and the Secretary of State subsequently reviewed the decisions after SM and TM [2013] EWHC 1144 (Admin). The claim was dismissed by the Administrative Court.