Islam & Ors v the Secretary of State for the Home Department

The welfare duty in section 55 of the Borders Act 2009 does not make an express statutory reference a precondition of a lawful immigration decision. Where the decision-maker knows the child’s age and considers the child’s interests and likely adaptation on return, omission of an express reference to section 55 is not, without more, a ground for judicial review. Delay in responding to a request to reconsider an immigration refusal is not automatically unlawful because a family includes a young UK-born child. The circumstances must take the case outside the ordinary category of such cases. On these facts, they did not.

The applicants sought permission to challenge the Secretary of State’s failure to determine their request to review a refusal of further leave to remain outside the Immigration Rules. Their application relied on Article 8 rights and concerned a family with a young child born in the United Kingdom. The refusal letter considered the child’s age, interests and ability to adapt to life in Bangladesh, but did not expressly refer to section 55 of the Borders Act 2009.

The Administrative Court refused permission to apply for judicial review. The applicants renewed their application for permission to appeal, arguing unreasonable delay, failure to have regard to section 55, and, alternatively, that their request amounted to further submissions under paragraph 353 of the Immigration Rules. The central issue was whether the delay and the child’s circumstances made an arguable public-law challenge.

Lord Justice Beatson refused the renewed application for permission to appeal. The applicants had not shown an arguable ground of judicial review.

1. Section 55 duty. The mere absence of an express reference to section 55 of the Borders Act 2009 in the refusal letter was not itself a ground for review. The decision-maker knew the child’s age and had considered his interests, including whether he was young enough to adapt to life in Bangladesh. Those matters demonstrated that the child’s position had been considered.
2. Delay. The court applied the approach in FH [2007] EWHC 1571, including the relevance of administrative resources and the limited circumstances in which delay in dealing with such requests will make judicial review arguable. The case did not fall outside the ordinary category. It was not exceptional merely because student parents had brought their child to the United Kingdom and the child was young. The court found no additional facts capable of making the delay arguable.
3. Paragraph 353. The Deputy Judge had rejected the argument that the review request constituted further submissions under paragraph 353 of the Immigration Rules because the letter merely criticised the earlier refusal and did not advance additional human-rights submissions. The point was not a freestanding basis for permission to appeal.

The application was therefore refused.

• Administrative Court: on 19 December 2013, the Deputy High Court Judge refused permission to apply for judicial review of the Secretary of State’s failure to determine the review request.
• Court of Appeal (Civil Division): a permission application was refused on the papers by Lloyd Jones LJ on 16 June 2014. On renewal, the Court of Appeal refused permission on 16 April 2015.