Manderson v Secretary of State for the Home Department

In an Article 8 claim based on family life, different nationalities and a child’s best interests do not, without more, establish exceptional circumstances warranting leave outside the immigration rules. The applicants bear the evidential burden of explaining why family life cannot continue in another country and supporting that case with evidence. Section 55 of the Borders Citizenship and Immigration Act 2009 imposes a substantive duty, but it does not require the Secretary of State to investigate or generate evidence in response to mere assertion. Express reference to section 55 is not essential if the substance of the duty has been discharged. A refusal decision may address the immigration rules before Article 8, provided the Article 8 claim is separately and fully considered. The Secretary of State is not generally required to make a removal decision at the same time as refusing leave.

The appellants were a Jamaican mother, a Zimbabwean father and their child, born in the United Kingdom. Both adults had overstayed after their student leave expired. They applied for leave outside the immigration rules, relying on family life, the child’s best interests and medical circumstances.

The Secretary of State refused the applications. The Upper Tribunal refused permission for judicial review, first on delay and, in any event, on the merits. The appellants appealed, arguing that the decisions failed to address Article 8, section 55 of the Borders Citizenship and Immigration Act 2009, their different nationalities and the alleged inevitable break-up of the family. They also argued that the Secretary of State unlawfully failed to make an appealable removal decision.

1. Appeal dismissed. The Upper Tribunal was entitled to refuse an extension of time because the explanations for delay were unsatisfactory. The court nevertheless considered the merits, having regard to the duty concerning the child’s best interests as explained in ZH (Tanzania) v The Secretary of State for the Home Department [2011] UKSC 4.
2. The decision letters were poorly drafted. A decision maker may address possible claims under the immigration rules first, but must make clear that the Article 8 claim has been separately and fully considered. The letters should also have expressly identified the focus on the child’s best interests and the possible consequences of refusal.
3. Those drafting deficiencies were not fatal. The substance of section 55 of the Borders Citizenship and Immigration Act 2009 had been discharged when the letters were read carefully and together. The child’s medical circumstances had been considered and rejected on the evidence, consistently with The Queen (Aladdin) v Secretary of State for the Home Department [2014] EWCA Civ 1334.
4. The applicants had asserted that removal would break up the family, but had not explained why the family could not live together in Jamaica or Zimbabwe and had produced no supporting evidence. The burden remained on them. Section 55 did not shift that burden or require the Secretary of State to investigate an unsatisfactorily advanced claim.
5. Different nationalities were not, in themselves, exceptional. In the absence of contrary evidence, the Secretary of State could proceed on the basis that the family could leave the United Kingdom together and establish family life elsewhere. The proposed removal therefore did not necessarily produce the claimed breach of Article 8 or the child’s best interests.
6. The Secretary of State was not required, in principle, to make a removal decision when refusing leave. The particular facts did not make the failure to make such a decision, or the delay before the judicial review claim was lodged, unlawful: Patel [2013] UKSC 73; [2014] AC 651. A prompt decision was nevertheless expected after the hearing, particularly in view of the child’s best interests.

Order: application dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): permission for judicial review was refused on 31 July 2014, both because the application was out of time and on the merits.
• Court of Appeal (Civil Division): permission to appeal was granted on renewal. The appeal was dismissed on all four grounds.