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

The duty to safeguard and promote children’s welfare under Borders, Citizenship and Immigration Act 2009 does not impose a general obligation to make a simultaneous removal decision whenever leave to remain is refused. Whether such a decision is required is fact-sensitive. Where the Secretary of State has considered the relevant circumstances, including children’s welfare, failure to make a removal decision at the same time or shortly afterwards does not necessarily constitute an error of law. A care plan approved by the Family Court does not, without more, make an appealable removal decision legally mandatory.

The applicants, Ghanaian nationals, were overstayers whose six children had been taken into care. The Secretary of State refused their applications for leave to remain in November 2013, having considered the children’s welfare under section 55, but made no removal decision. The applicants argued that a removal decision should have been made so that they could appeal, and that its absence was incompatible with the Family Court’s care plan for contact with the children.

Upper Tribunal Judge Kekic refused permission to bring judicial review proceedings. The applicants sought permission to appeal, raising whether section 55 required a removal decision alongside refusal of leave and whether the omission constituted an arguable error of law.

1. Application refused. The Court of Appeal concluded that there was no arguable error of law in the Secretary of State’s decision or in the Upper Tribunal’s refusal of permission.
2. The issue was fact-sensitive. The court relied on R (Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161, including its conclusion that section 55 and the associated guidance did not impose a general obligation to make a simultaneous removal decision in every case where leave to remain was refused.
3. The Secretary of State had considered the facts before her in November 2013, including the position of the children in care and the care plan. The fact that the Family Court contemplated continuing contact did not make a removal decision legally mandatory, nor did the absence of such a decision itself establish incompatibility or an error of law.
4. Judge Kekic, and Judge Reeds before him, were entitled to conclude that the Secretary of State had taken all appropriate matters into account and could not be criticised for not directing removal at that time or shortly afterwards. The possibility of making further representations to the Secretary of State did not provide a basis for granting permission to appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kekic refused permission to bring judicial review proceedings on 14 August 2014. The judgment also records an earlier paper decision by Judge Reeds.
• Court of Appeal (Civil Division): Permission to appeal was refused. The Upper Tribunal’s decision and order were not shown to contain an arguable error of law.