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

A decision granting limited discretionary leave rather than indefinite leave may be unlawful if the Secretary of State fails to comply with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Relief should nevertheless be refused where the claimant cannot show a real prospect that lawful reconsideration would produce a different result. The Secretary of State may adopt a staged approach to settlement. The best interests and welfare of children must first be considered, but they remain capable of being outweighed by public-interest considerations. A grant of indefinite leave is not automatically required merely because children are involved.

Mr and Mrs Azizi and their five children, Afghan citizens, challenged the Secretary of State’s decision of 24 January 2012 granting three years’ discretionary leave to remain rather than indefinite leave. The decision letter did not refer to section 55 of the Borders, Citizenship and Immigration Act 2009 or explain the choice of limited leave.

The claim was amended after SM & Ors v Secretary of State for the Home Department [2013] EWHC 1144 (Admin), which held the relevant discretionary-leave policy unlawful. The central issue was whether the admitted section 55 error was material, having regard to the Court of Appeal’s decision in Alladin v Secretary of State for the Home Department [2014] EWCA Civ 1334.

1. Unlawful decision. The Secretary of State accepted that the decision was unlawful following SM & Ors v Secretary of State for the Home Department [2013] EWHC 1144 (Admin), because the decision-making failed properly to address section 55 and the individual welfare of the children.
2. Materiality. Following and adopting Alladin v Secretary of State for the Home Department [2014] EWCA Civ 1334, the court held that judicial review should not be granted unless there was a real prospect that lawful reconsideration might produce a different decision. The error was immaterial where the facts were sufficiently indistinguishable from Alladin, and a staged approach would almost certainly lead to the same grant of discretionary leave.
3. Section 55 and staged settlement. The best interests and welfare of the children had to be considered first, consistently with ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. Those interests were not the only relevant considerations. The Secretary of State was entitled in principle to maintain a staged settlement policy, and indefinite leave was not automatically required.
4. Relief and costs. The court also declined to quash the decision because the Secretary of State would shortly reconsider the family’s position on a further application, when the claimants could present evidence concerning delay and any disadvantages arising from the absence of indefinite leave. The claim was dismissed. There was no order as to costs. Permission to appeal was refused.

First-instance judicial review. The judgment discusses Alladin v Secretary of State for the Home Department [2014] EWCA Civ 1334, but this was not an appeal from that decision.