Amitkumar Pravinbhai Patel, R (on the application of) v The Secretary of State for the Home Department (Duration of Leave � Policy)

A revised discretionary-leave policy which requires case-specific consideration of a child’s welfare is compatible with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The child’s best interests are a primary, but not conclusive, consideration. A staged route to settlement may therefore be lawful.

There is no obligation to grant, or to consider granting, indefinite leave to remain where the application sought discretionary leave and did not identify a particular disadvantage arising from limited rather than indefinite leave. For private or family life applications decided after 6 September 2012, the Secretary of State may apply the new Immigration Rules and the policy then in force, even if the application pre-dated 9 July 2012.

The applicant, an Indian national, and his wife had overstayed after entering as visitors. Their child was born in the United Kingdom. They applied for discretionary leave relying on article 8. Following earlier successful appeals in the First-tier Tribunal, the Secretary of State granted the family 30 months’ discretionary leave in July 2013.

In this judicial review, the applicant contended that the Secretary of State had failed to consider the child’s best interests under section 55 when determining the duration of leave, and had wrongly applied the post-9 July 2012 immigration policy rather than the earlier six-year route to settlement. The central issues were whether indefinite or longer leave had to be considered, and which policy governed the grant.

1. The judicial-review application was dismissed. The applicant had applied for discretionary leave, not indefinite leave to remain. Applying R (Alladin and Wadhwa) v Secretary of State for the Home Department [2014] EWCA Civ 1334, the Tribunal held that the Secretary of State could not fairly be criticised for granting the form of leave sought where no clear request for indefinite leave, or evidence of a particular disadvantage caused by limited leave, had been made.

2. The Secretary of State was entitled in principle to operate a staged route to settlement. Immediate settlement for persons who had remained in breach of the Immigration Rules was not required, and the duration of discretionary leave remained a matter for the Secretary of State’s discretion.

3. The earlier policy considered in R (SM & Others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) had been unlawful because it precluded case-specific consideration of children’s welfare. That decision concerned the pre-24 June 2013 policy. The revised policy had addressed that defect and, as explained in R (NS and others) v Secretary of State for the Home Department [2014] EWHC 1971 (Admin), complied with section 55. A child’s best interests must be treated as a primary consideration, but may be outweighed by countervailing considerations. The applicant identified no immediate prejudice from the 30-month grant.

4. Applying Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74, the Tribunal held that the transitional protection recognised in Edgehill and Bhoyroo v Secretary of State for the Home Department [2014] EWCA Civ 402 operated only for decisions made between 9 July and 6 September 2012. The impugned decision was made in July 2013. The Secretary of State was accordingly entitled to apply the new Rules and the contemporaneous policy, consistently with Odelola v Secretary of State for the Home Department [2009] UKHL 25.

5. There was no historic injustice or legitimate expectation requiring application of a revoked policy. The applicant had no vested right to leave under the earlier policy.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the applicant’s judicial-review challenge to the Secretary of State’s grant of 30 months’ discretionary leave.

• First-tier Tribunal: an earlier appeal was allowed because the removal decision had not addressed the child’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009. A later appeal was allowed on article 8 grounds, after which the Secretary of State granted discretionary leave.