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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AB & ors, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 1524 (Admin) (20 June 2022) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2022/1524.html Cite as: [2022] WLR 5341, [2022] 1 WLR 5341, [2022] WLR(D) 282, [2022] EWHC 1524 (Admin), [2022] Imm AR 1498 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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Queen on the Application of (1) (AB) (2) OK (by her litigation Friend and Mother AB) (3) MKD (by his litigation Friend and Mother AB) |
Claimants |
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- and – |
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Secretary of State for the Home Department |
Defendant |
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Mr J Holborn (instructed by Government Legal Department) for the Defendant
Hearing date: 18 May 2022
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Crown Copyright ©
Mr Justice Lane :
JUDGMENT
A. THE ORIGINAL CHALLENGE
B. THE CHANGED LANDSCAPE
C. SCOPE OF THIS JUDGMENT
"Those seeking to establish their family life in the UK must do so on basis that prevents burdens on the taxpayer and promotes integration. This reflects the public interest in safeguarding the economic well-being of the UK, which is a legitimate aim under Article 8(2) of the European Convention on Human Rights in qualifying the exercise of the right to respect for private and family life.
Under Appendix FM, limited leave under the five-year partner or parent route, as a bereaved partner or as a fiancé(e) or proposed civil partner will be granted subject to a condition of no recourse to public funds.
In all other cases in which limited leave is granted as a partner or parent and Appendix FM, or in which limited leave on the grounds of private life is granted under paragraph 276BE or paragraph 276DG, or in which limited leave is granted outside the rules on the grounds of family or private life, leave will be granted subject to a condition of no recourse to public funds".
"GEN.1.11A. Where entry clearance or leave to remain as a partner, child or parent is granted under paragraph D-ECP.1.2., D-LTRP.1.2.,D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2., it will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with:
(a) satisfactory evidence that the applicant is destitute as defined in
section 95 of the Immigration and Asylum Act 1999; or
(b) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income."
D. CASE LAW ON SECTION 55
"159. Paragraph GEN.1.11A does not refer to the best interests of a relevant child, still less does it reflect the approach to the best interests of a child which is encouraged in the guidance (which refers to ZH (Tanzania) and to FZ (Congo)). Instead, while it refers to a child, it imposes a different, more stringent and narrower test than the approach in either of those cases. We consider, applying the reasoning in MM (Lebanon), that that does not expressly comply with section 55. Nor does it achieve substantial compliance, because it substitutes for the requirements of section 55 a test which does not have the same effect.
160 We have considered carefully whether the extensive guidance mitigates this deficiency. Our first observation is that it is unlikely to, because (if paragraph GEN.1.11A is designed to achieve compliance with section 55) it is a misdirection, as it substitutes a different test for the test in section 55. That observation is reinforced by the fact that the section of the guidance which deals specifically with the NRPF condition simply repeats the test in paragraph GEN.1.11A (see paragraph 76, above), as does the section of the guidance which deals with decisions to grant leave (see paragraph 73, above).
161 We have asked ourselves whether other provisions in the guidance can displace the approach to the NRPF condition which is mandated by paragraph GEN.1.11A and by the two passages in the guidance to which we have just referred. Detailed consideration of the guidance reinforces our sense that paragraph GEN.1.11A is not intended to achieve compliance with section 55, because, in many other different places, the guidance accurately states the general effect of section 55. The difficulty with the guidance, however, is that its many references to section 55 are all in the context of decisions whether or not to grant LLR, rather than in the context of the distinct decision which is relevant in these cases, that is, the decision whether to impose or to lift an NRPF condition. This difficulty is compounded by the factors we mention in the previous paragraph. We have also asked ourselves whether the general statements in the guidance (see paragraphs 70 and 76, above) that section 55 applies to all decisions can displace these factors. As a matter of clear English, when ranged against the provisions of the guidance which deal with the NRPF condition, they cannot. It is perhaps significant, but not, of course, by any means decisive, that the view of the author of the 2015 PES was that the guidance 'allowed' the section 55 duty to be considered in every case (but did not require it)."
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent." (My emphasis).
"begun to characterise those interests properly, as identified that the level of fee creates practical difficulties for many (with some attempt being made to evaluate the numbers); and has then said that wider public interest considerations, including the fact that the adverse impact is to some extent ameliorated by the grant for leave to remain, tilts the balance". (paragraph 112).
"116. Section 55, in contrast to article 3(1) of the UNCRC, only possesses a procedural dimension. By that I mean that a breach is established if it be demonstrated that the Secretary of State has failed to have regard to the best interests of the child, being a convenient way of summarising what the section actually says".
E. R(A) V SECRETARY OF STATE FOR THE HOME DEPARTMENT
"38.In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 181 F (reading the word "permits" in the proper way as "sanction" or "positively approve") and by adapting Lord Templeman's words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by determining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.
…
40.There are further reasons which indicate that this is the appropriate standard. If the test were more demanding there would be a practical disincentive for public authorities to issue policy statements for fear that they might be drawn into litigation on the basis were not sufficiently detailed or comprehensive. This would be contrary to the public interest, since policies often serve useful functions in promoting good administration. Or public authorities might find themselves having to invest large sums on legal advice to produce textbook standard statements of the law which are not in fact required to achieve the practical objectives the authority might have in view. Also, if the test were of the nature for which Mr Southey contends, the courts would be drawn into reviewing and criticising the drafting of policies to an excessive degree. In effect they would have a revising role thrust upon them requiring them to produce elaborate statements of the law to deal with hypothetical cases which might arise within the scope of a policy. Such a role for the courts cannot be justified. Their resources ought not to be taken upon such an exercise and it would be contrary to the strong imperative that courts decide actual cases rather than address academic questions of law."
F. FAMILY POLICY GUIDANCE
"Those seeking to establish their family life in the UK must do so on a basis that prevents burdens on the taxpayer and promotes integration. The changes to the Immigration Rules implemented on 9 July 2012 are predicated in part on safeguarding the economic well-being of the UK, which is a legitimate aim under Article 8 of the ECHR (the right to respect for private and family life) for which necessary and proportionate interference in Article 8 rights can be justified.
The Immigration Rules are approved by Parliament and govern the no recourse to public funds policy in grants of leave made under the family and private life routes under the rules and in grants of leave made outside the private life rules under ECHR Article 8 on the basis of exceptional circumstances.
This approach now carries the full weight of primary legislation, under Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by section 19 of the Immigration Act 2014 and implemented on 28 July 2014. This sets out public interest considerations concerning the maintenance of effective immigration controls and other considerations, which apply where a court or tribunal is considering whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8. In particular, it sets out in section 117B(3) of the 2002 act inserted by section 19 of the Immigration Act 2014, that:
'It is in the public interest, and in particular in the interests of the economic wellbeing of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons -
a) are not a burden on taxpayers, and
b) are better able to integrate into society.'"
"In accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009, the best interests of a child, whether that child is applicant or dependant of the applicant, must be taken into account as a primary, although not the only, consideration in deciding whether it is reasonable to impose or maintain an NRPF condition."
"Paragraph GEN.1.11A provides the basis in the Immigration Rules for exceptions to the wider policy on migrants not having recourse to public funds. In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds." (original emphasis)
"How to assess needs of children dependent on the application
Is the applicant's income enough to meet the particular and essential additional needs of any dependent child or children.
The aim of this consideration is to assess whether a decision to impose, or not lift, the condition of NRPF is reasonable with regard to the parent but would have a disproportionate impact on the child's welfare.
The issues to be addressed are whether the decision that is made would lead to the child:
- experiencing lower level of well-being when they currently enjoy
- being deprived of something beneficial to which they currently have access
not being able to access a specific item or items of recognised benefit normal for a child
Consider here any childcare that may be needed if the parent is working, any needs relating to school attendance (school trips, uniforms), or any other items that a child could reasonably be expected to benefit from but would not otherwise be considered essential such as books or toys.
The best interests of any relevant child
Having assessed the likely effect on any relevant child of imposing or maintaining, an NRPF condition on the applicant, caseworkers then need to form a view on whether it would be in the best interests of a relevant child to impose or to maintain such a condition.
If an NRPF condition would not be in the best interests of any relevant child and would significantly impact on a child's particular and essential needs, then you need to decide whether in all the circumstances, and treating the best interests of any
relevant child as a primary (but not the only) consideration, the adverse effect of an NRPF condition on the child is sufficient to outweigh any other considerations to not impose or to lift the NRPF condition:" (the use of bold type is as per the original, except for the words "and would significantly impact … essential needs", where the emphasis is mine)
G. THE DECISIONS
"This is unless you meet the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules or there are exceptional circumstances set out in the application which require recourse to public funds to be granted.
The condition of no recourse to public funds will not be imposed or will be lifted where:
- the applicant has provided satisfactory evidence that they are destitute; or
- the applicant has provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income; or
- the decision maker decides not to impose, or to lift, the no recourse to public funds condition code because the applicant has established that there are exceptional circumstances in their case relating to their financial circumstances which, in the view of the decision maker, requires the no recourse to public funds condition code not imposed or to be lifted".
"Consideration has also been given to section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children). We have considered the best interests of your children. As set out above no evidence has been provided which shows that the children are in inadequate accommodation or that their essential living needs are not being met."
H. DISCUSSION
"If an NRPF condition would not be in the best interests of any relevant child, and would significantly impact on a child's particular and essential needs, then you need to decide whether in all the circumstances, and treating the best interests of any relevant child as a primary (but not the only) consideration, the adverse effect of an NRPF condition on the child is sufficient to outweigh any other considerations to not impose or to lift the NRPF condition."