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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> SM v Secretary of State for the Home Department (Judicial Review) [2019] UKAITUR JR008852018 (6 June 2019) URL: http://www.bailii.org/uk/cases/UKAITUR/2019/JR008852018.html Cite as: [2019] UKAITUR JR008852018, [2019] UKAITUR JR8852018 |
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JR/885/18
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision
The Queen on the application of
SM
(a minor, by her litigation friend AM)
Applicant
v
Secretary of State for the Home Department
Respondent
Before Upper Tribunal Judge Bruce
Application for judicial review: substantive decision
Having considered all documents lodged and having heard from the Applicant's representative, Ms A. Weston QC of Counsel instructed by Central England Law Centre, and the Respondent's representative Mr Z. Malik of Counsel instructed by the Government Legal Department, at a hearing at Birmingham Civil Justice Centre on the 20 th February 2019
Decision: the application for judicial review is granted.
Background and the Decision of the Secretary of State
"my mother and I have had issues regarding our immigration status since my early childhood which meant it was never the same for me as any other ordinary kid's life. My mother wasn't allowed to work which meant I faced a rough childhood with a lot of moving about into different houses in different cities and joining new schools so it was hard for her to make ends meet and hard for me to cope with the constant change.
At an age where most little girls would worry about toys and dolls I would worry about whether I would have a place to spend the night or even see my mother because of the court case my father had filed...."
This period of poverty, instability and further domestic violence was the third difficulty that SM faced growing up.
"Lots of the friends I had as I was younger or now don't know about my immigration situation. They all think I am a British citizen just like them but I find it is an embarrassment because no teenager would understand why or how I still haven't qualified to become a British citizen when I have lived in the country since reception to now when I'm going into my GCSEs. My precarious immigration status is a source of shame to me and I just find it really difficult to disclose my circumstances, even to my closest friends. My fear is that they will just think I am "a freshie". In fact, I recently fell out with one of my best friends who I have told about my status because that information was passed on to some boys in my class. They bullied me about my status and I have received some nasty social media posts as a result of it. I felt humiliated because of the nasty things they were saying to me that were linked to my immigration status".
This persistent bullying, much of it linked to her immigration status, is the fifth source of distress for SM.
"Whilst I was in Pakistan my Dad was telling me that he wanted me to live with him in Pakistan, and that he wanted to make me marry one of his first cousins. I was really sad and upset when I heard him say this and it made me feel anxious and scared all over again. The last thing I want to do is to be forced into marriage to someone that I don't know but also it would mean I would have to live in Pakistan and not in the UK. I really hate my father for doing this to me and making travel to Pakistan to go to court. And I hate him for wanting to force me to marry someone".
The threat of forced marriage is the sixth challenge that SM has had to deal with.
"... I felt I had to try and be really mature or try to handle situations and events other kids my age wouldn't have to go through. This really affected me emotionally and I started to self-harm as a coping strategy. The self-harming is the time when I feel I am in control of what I'm doing. It is the only time that I feel that I'm in control. I know that it is wrong and I know that it upsets my mum but it is something that I know I can do to give me a release and make me feel that I am the one who is making decisions. I have never been able to make decisions and I have always had to watch other people make decisions for me and my mum, including the court and the Home Office and my dad and other members of the family and the community".
"I was told that I had been granted limited leave to remain but I did not have the card to prove it and that just made me feel angry sad and upset. I self-harmed as a result of this. It seems that I am just left constantly anxious about the future because I just don't have any certainty".
"Please find enclosed applications for further leave to remain in respect of [AM], submitted on the basis of her parental relationship to her to British citizen children [SM's two younger brothers]. As you will note [AM] is now sole carer for [her sons], her relationship with the father having broken down due to domestic abuse. [AM] and her children are now assessed as destitute by Birmingham City Council's Children and Families Directorate, and are provided with subsistence support and accommodation - at a domestic violence refuge - by that authority under section 17 of the Children Act. We therefore submit [AM]'s leave to remain request in the expectation that a fee waiver is applicable and enclosed supporting financial information in the form of bank statements confirming that [AM]'s bank statements are presently in excess of £900 overdrawn.
We further draw your attention to the fact that [AM]'s older daughter [SM], also a Pakistani national, is included as [AM]s dependent on this application. As you will note [SM] has been in the UK since the age of three and has therefore spent 12 of the 15 years of her life to date in this country. She therefore meets the requirements of paragraph 276ADE of the immigration rules having been resident in the UK and integrated into the school's education system for well over seven years.
That being the case, we would draw your attention to the attached evidence of [SM]'s mental instability and her history of self-harm and low self-esteem. As you will note her GP has recommended that her mental instability is of such severity that she should be granted the right of leave to remain on a permanent basis.
While we are aware that general Home Office custom and practice in such instances is to grant leave to remain in 30 months blocs until granting settlement at 10 years, we respectfully submit that such action is not appropriate in this instance, due to the family's destitute circumstances, the history of domestic violence and abuse, the concerns around potential forced marriage and the concerns around [SM]'s poor mental health. We are therefore in this case requesting that the Secretary of State's discretion is used to grant her indefinite leave to remain.
With this in mind we respectfully refer you to the determination SM and TM and JD and others v Secretary of State, [2013] EWHC 1144 (Admin), which found that the welfare and best interests of relevant children must be considered before determining the length of leave to remain to be granted and that the blanket application of a fixed limited period of leave to remain is unlawful. As the judgement noted:
'When making decisions concerning children. Officials must grasp the nettle at the outset and make a realistic appraisal whether it is clear from the outset that a child's future is going to be in the UK and make decisions accordingly'
Given that [SM] has been in the UK for 12 of the 15 years of her life to date and that she has two siblings who are British citizens, it is evident that her life is here in the UK and that her future is here in the UK.
We therefore consider it contrary to her best interests to prolong the instability and precariousness which has characterised her life to date and consider it reasonable to request that the Secretary of State's discretion is used in this instance to grant her indefinite leave to remain, relieving her of the anxiety and uncertainty associated with time-limited leave to remain and allowing her the opportunity to meet her full potential as a schoolchild and to plan for access to further and higher education."
• A Prohibited Steps, Contact, Specific Issue and Residence Order, issued under section 8 of the Children Act 1989 by the Family Division of the High Court sitting at Birmingham District Registry on 30 January 2012
• Various documents relating to SM's mental health, including a 'Child in Need' referral from her school to Birmingham City Council (which identifies SM's legal status as a "complicating factor") and the 'Child in Need' plan produced by the council's Children's Services
• A letter dated 8 th June 2017 to the UKBA from the Deputy Headteacher of SM's school, who describes her as a "vulnerable child on several levels". The letter expresses concern about consistent self-harming, bullying, the effects of the "nasty custody battle", poor housing and stress. The deputy headteacher concludes:
"[SM]'s mental health is deteriorating because of the serious issues facing the family. I would fully support any application for her to remain in the UK where I am sure she has better life chances and will be safe. [SM] is a very able student academically. She came up to secondary school with high SATs levels and is characterised as 'more able'. She has potential to achieve high grades and to go to university if her life settles down and the worry hanging over her about her future is removed".
• A letter dated 14 th June 2017 from the family GP. This records that SM is known to suffer from low mood and stress disorder. She has had to visit the surgery after incidents of self-harm. The GP had referred her for mental health support from CAMHS. The doctor concludes: "due to her unstable mental health I feel she would benefit from residing in the UK on a permanent basis with her mother, who she is settled with"
• A letter dated 24 th January 2018 from Valerie Gardner, a Victim Caseworker with Victim Support. Ms Gardner explained that she has been supporting SM in relation to incidents of bullying and harassment, incidents that have been serious enough to warrant police involvement. She writes:
"[SM] has recently been granted a visa for 2½ years and although she is very grateful for that, she is still in a stressful and anxious state because of the uncertainty about her future after that time has passed....based on my work with [SM], I have witnessed how very vulnerable and emotional she is. If she is allowed to stay in the United Kingdom on a permanent basis, she can continue to receive the much needed emotional help and care from her mother and the other agencies that are supporting her at present".
" Settlement in the UK is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain (ILR).
However, there may be rare cases in which either a longer period of leave or an early grant of ILR is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing factors do not outweigh these best interests) or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or ILR).
If the applicant specifically requests a longer period of leave than 30 months, or ILR, and provides reasons as to why they think a longer period of leave or ILR is appropriate in their case, the decision maker must consider this and set out in any decision letter why a grant of more than 30 months or ILR has not been made.
In cases not involving children (as the main applicant or as family members included in the application), there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases the extent that it is necessary to deviate from the standard grant of 30 months leave to remain.
In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons. Where the decision-maker considers that a longer period of leave may be justified the case must be referred to a senior caseworker to consider further. If the decision maker decides that the case is not sufficiently exceptional or compelling, they should grant 30 months' leave to remain, and explain in the decision letter why this has been granted instead of the length of leave requested.
...
In cases involving children (as the main applicant or as family members included in the application), the decision-maker must also have regard to the best interests of the child as a primary consideration (but not the only or the paramount consideration) when deciding the period of leave to be granted.
In some cases it may be appropriate to grant leave on a short-term temporary basis to enable particular issues relating to the child's welfare to be addressed before they leave the UK. If the grant of leave is being made on a short-term temporary basis, a shorter period of leave should be granted appropriate to the circumstances of the case.
Otherwise, whilst the expectation is that a period of 30 months' (2.5 years') leave will normally be granted, there may be cases where evidence is provided, demonstrating that a child requires a longer period of limited leave (or ILR), in order to reflect the best interests of that individual child.
There is discretion to grant a longer period of leave, where appropriate, there may be cases where a longer period of leave to remain is considered appropriate, either because it is clearly in the best interests of the child (and any countervailing factors do not outweigh those best interests) or because there are particularly exceptional or compelling reasons to grant limited leave for a longer period, or to grant ILR.
The onus is on the applicant to establish that the child's best interests would not be met by a grant of 30 months leave to remain and that there are compelling reasons that require a different period of leave to be granted. This means that the decision-makers should only consider whether to grant a longer period of leave or ILR if (a) the applicant has specifically asked for this and (b) they have provided their reasons for why they think a longer period of leave or ILR is appropriate.
In considering the period of leave to be granted factors such as the length of residence in the UK, whether the child was born in the UK, and strong evidence to suggest that the child's life would be adversely affected by a grant of limited leave rather than ILR are relevant. The conduct of the child's parent(s) or primary carer and the immigration history and the public interest in maintaining fair, consistent and coherent immigration controls are also relevant when considering the length of leave to be granted.
Where the parent(s) or primary carer already has leave or where their application is being decided first, the period of leave granted to the parent or primary carer is relevant to the assessment of what period of leave to grant the child. Whilst it will usually be in the child's best interests to have leave in line with their parent(s) or primary carer, the decision-makers should take into account any particularly compelling factors which may warrant a longer period of leave. It should be borne in mind that the child is not responsible for the conduct or immigration history of their parent(s) or primary carer.
An example of a case where it might be appropriate to grant a child ILR early might be where the child has a serious and chronic medical condition which could not be effectively treated in the country of proposed return such that return would breach the child's rights under ECHR Article 3 or Article 8. The child would be eligible for leave to remain. However, if there was evidence that the child was seriously distressed by the prospect of a grant of limited leave it might be concluded that it would be in the child's best interest to grant the child ILR to provide a greater degree of certainty for the purposes of their continued treatment or mental well-being. However, the threshold is high, and concerns the direct effect on the person concerned. The age of the person is only one factor in the assessment.
....
Where a decision is taken to grant ILR to a child because it is considered to be in their best interests, this does not necessarily mean that the parent(s) or primary carer should be granted ILR in line. It will normally be appropriate to grant a period of limited leave to 30 months to the parent(s) or primary carer, unless they can demonstrate exceptional and compassionate circumstances in their own right, that warrant departure from this policy.
In all cases, the onus is on the applicant (or their representative) to provide evidence as to why it is in the best interest of the child to be granted a period of leave outside the rules that is longer than 30 months. Where the decision-maker considers that there are exceptional circumstances that mean it is in the best interests of the child to depart from the policy of granting 30 months leave to remain the case must be referred to a senior caseworker to consider further.
Where granting a non-standard period of limited leave to the applicant because it is accepted that there are exceptional reasons for doing so, this leave will have to be granted outside the immigration rules as there is no provision within Appendix FM for granting limited leave for a period of more than 30 months. This also applies to ILR where this is granted outside of a valid ILR application or where the requirements of the rules are not met. If there are exceptional reasons to grant ILR. This should be granted outside the rules."
"Unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of leave before being eligible to apply for ILR....
...The Secretary of State considers that it would be unfair to other migrants (including children) who have to complete a probationary period before being eligible for ILR for you to be given preferential treatment, especially as no application for ILR was made. It is open to you to make an application for settlement should you consider your circumstances are particularly exceptional, compassionate or compelling".
The request is finally refused on the grounds that it is for a purpose not covered by the rules.
The Challenge
(i) A failure to take relevant matters into account;
(ii) The Respondent unlawfully fettering her discretion and/or failing to exercise such a discretion;
(iii) A failure to discharge the statutory duty under s.55 of the Borders Citizenship and Immigration Act 2009;
(iv) Irrationality;
(v) Failure to apply and/or misinterpreting relevant published guidance
"As Holman J pointed out in SM & Others supra, there is an irreconcilable conflict between the duty to treat the best interests of the child as a 'primary consideration' ie only to be outweighed by an imperative of sufficient gravity, and the imposition of a 'very high', 'compelling' or 'exceptional' circumstances threshold. Were the policy to be interpreted, as here, as effectively imposing an unachievably high threshold for children's cases to meet, it would be unlawful as inadequate to meet the s.55 duty: MM (Lebanon), particularly in circumstances where the Respondent expressly relies on the residual discretion, interpreted in accordance with the s.55 statutory guidance, to meet that duty" [1].
The Secretary of State's Defence
"As I have intimated, a striking feature of Mr Wadhwa's case is that at no stage did he make a clear request to the Secretary of State for the grant of ILR. In those circumstances it would be wrong to criticise the Secretary of State for granting DLR in the belief that she was acceding to the only application made."
Discussion and Findings
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen -
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(2)The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
...
" There is no obligation on the Secretary of State to grant ILR or to consider granting ILR in circumstances where no formal application for ILR has been made"
38. Insofar as the words "formal application" could be read there to mean a valid application as defined at paragraph 6 of the Immigration Rules, that headnote is unfortunately misleading. Nothing in the body of the judgment itself indicates that Judge Eshun believed that to be the case. The applicants in Patel were a family whose cases had been returned to the Secretary of State for consideration after the First-tier Tribunal had allowed their linked appeals on human rights grounds. The Secretary of State had, in accordance with the Rules, granted each member of the family a period of 30 months' Discretionary Leave. The family had sought to judicially review that decision. Dismissing their claims, Judge Eshun accepted the Secretary of State's argument that their case was on fours with that of Mr Wadhwa, the second appellant in Alladin, whose appeal had been rejected by Lord Justice Floyd in the following terms:
"As I have intimated, a striking feature of Mr Wadhwa's case is that at no stage did he make a clear request to the Secretary of State for the grant of ILR. In those circumstances it would be wrong to criticise the Secretary of State for granting DLR in the belief that she was acceding to the only application made."
39. Note the language used: "at no stage did he make a clear request". Note the context: Alladin and Wadhwa's appeals both concerned the exercise of discretion outside of the rules. It is perfectly clear, from both that language and context, that the point was not that Mr Wadhwa had failed to make a formal application for ILR, but that he had failed to even ask the Respondent to exercise his discretion in his favour before complaining about his failure to do so. In those circumstances his challenge was unarguable. So too was the case for the Patels, who had similarly failed to make a specific request that the Secretary of State depart from the 'standard' grant of 30 months. As such the words "formal application" in the headnote of Patel should more accurately read "formal request".
40. This interpretation is consistent with the decision of Upper Tribunal Judge Smith in CS, and indeed with the Secretary of State's own in this case, since it is apparent from the letter of the 16 th April 2018 that the Secretary of State understood ASIRT to have made such request, and to have exercised his discretion 'outside of the rules' in responding to it. It is further consistent with the terms of the policy itself, which makes clear that it is not only open to applicants for discretionary leave to request that a longer period of leave is granted, but that where such a request is made, the Secretary of State is obliged to consider it:
"If the applicant specifically requests a longer period of leave than 30 months, or ILR, and provides reasons as to why they think a longer period of leave or ILR is appropriate in their case, the decision maker must consider this and set out in any decision letter why a grant of more than 30 months or ILR has not been made".
(my emphasis)
41. See further Behary and Anr v Secretary of State for the Home Department [2016] EWCA and Asiweh v Secretary of State for the Home Department [2019] EWCA Civ 13 in which the Court of Appeal confirmed:
42. For the foregoing reasons I am satisfied that Mr Malik's submission is no answer to SM's criticisms of the decision of the 6 th November 2017. That decision was unarguably flawed for all the reasons identified in the Applicant's grounds.
43. The second letter is dated the 16 th April 2018. It was drafted in response to a letter before action and contains, unlike the first, actual reasoning.
44. At the centre of SM's complaint about his second decision is the Secretary of State's duty arising under section 55 of the Borders Citizenship and Immigration Act 2009:
(1) The Secretary of State must make arrangements for ensuring that-”
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are-”
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)
"there may be rare cases in which either a longer period of leave or an early grant of ILR is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing factors do not outweigh these best interests) or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or ILR)...
In cases not involving children (as the main applicant or as family members included in the application), there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases the extent that it is necessary to deviate from the standard grant of 30 months leave to remain...
In cases involving children (as the main applicant or as family members included in the application), the decision-maker must also have regard to the best interests of the child as a primary consideration (but not the only or the paramount consideration) when deciding the period of leave to be granted.
...
(emphasis added)
i) Was it clearly in SM's best interests to grant her indefinite, rather than limited, leave;
ii) If yes, were there nevertheless countervailing factors capable of displacing those best interests such that a 'standard' grant of leave would remain appropriate.
"...I know that it is wrong and I know that it upsets my mum but it is something that I know I can do to give me a release and make me feel that I am the one who is making decisions. I have never been able to make decisions and I have always had to watch other people make decisions for me and my mum including the court and the Home Office and my dad and other members of the family and the community".
"Whilst your family were considered to be destitute following the breakdown of your mother's relationship with her second husband, you and your mother have been granted leave to remain in the UK with a condition of stay permitting recourse to public funds. It is therefore considered that you will have appropriate access to sources of benefits and accommodation as your entitlements permit and which should alleviate some of the concerns you have about your status in the UK. It is not accepted that having been declared destitute, and since being given permission to remain in the UK with access to public funds, is a circumstance exceptional enough to warrant granting you ILR. Many other migrants are in the UK who are being supported by local authorities as destitute persons, or who have limited leave to remain with the recourse to public funds, (and in many instances without such a recourse): none of those persons have any automatic entitlement to ILR because of that. It is also noted that your mother is educated to Masters degree level, and therefore she has the potential to seek to and secure gainful employment to reduce the reliance on public funds and overcome the family's feelings of being destitute."
Whilst you may have suffered from being in households where there have been histories of domestic violence and abuse, it is not accepted that this is a reason to grant you ILR. As perturbing as it is in the modern world that domestic violence and abuse continues, it is not considered an exceptional circumstance where someone does not qualify for ILR under the Immigration Rules as a victim of domestic violence for the Secretary of State to derogate outside the standard grant of 30 months leave to remain (where someone has been permitted to remain in the UK on the basis of their family and/or private life).
Whilst concerns have been raised about you being potentially inducted into a forced marriage by your own father, as you are currently permitted to remain in the UK there is no reason for you to return to Pakistan where you would be at such a risk. You and your mother have no reason to inform your father of your current residence in the UK such that you may be at harm of extended family members or friends of your father who may be in, or come to, the UK to seek your marriage against your will. If any such incidents did occur, it would be open to you and your mother to report such matters to the relevant authorities. Furthermore, no cogent reason has been forwarded as to why granting you ILR would protect you from being forcibly married. Assuming you have no intention of returning to Pakistan as a single woman where you may be in danger, if you continue to meet the requirements of further leave to remain in the UK relative safety is secured whilst you remain here. Your concerns about being forcibly married are therefore not seen as an exceptional circumstance warranting a grant of ILR.
Whilst you have been in the UK since you were three years old and have British citizen siblings, this is not considered an exceptional circumstance to grant you ILR. With current migration trends there are many families in the UK where some family members are settled here or who are British citizens and other family members who are not, the latter of which may be going through the same probationary period of limited periods of leave to remain until they become entitled to apply for ILR.
Whilst the desire has been expressed to grant you ILR so as not to prolong instability and precariousness which has characterised your life to date, it has not been borne out how a grant of ILR would ameliorate the range of mental health issues that you have. You have been granted limited leave to remain in the United Kingdom with access to public funds. As long as your circumstances remain the same and do not engage in any activity that would deem you unsuitable to be here, your status upon review should remain the same and you will face no unnecessary hardship as a result of having limited leave to remain.
It is further noted that you have been recommended the counselling because of your various psychological problems and other person with limited leave to remain in the UK, you would be able to access such treatments by the NHS and will not therefore be disadvantaged as a result of having such limited leave to remain.
"Whilst it has been stated that you have been subject to bullying because of your immigration status it is noted that in your legal representatives Pre-Action Protocol letter of 5 January 2018, it is stated that you rarely disclose your immigration status to anyone even your close friends. If that is the case, it would seem contradictory to assert that you are being bullied over your immigration status if you rarely disclose this information. Living in Birmingham, which has a large resident migrant population, it would seem doubtful that you attend a school where you are or have been the only person who has been a migrant to the UK, and whose immigration status may be perceived as being precarious. The Secretary of State would contend that your immigration status would not be a significant factor, if any, that would lead you to being bullied, but may be more predicated on matters that teenagers perceive as being divisive and which fosters what seemed an unfortunate pervasive and pernicious bullying culture prevalent in today's society (particular within schools). As your school is aware of matters of you being bullied, it is considered that the appropriate authority is at immediate hand during school time to address issues of bullying within their sphere of influence. It is not considered that this is an exceptional circumstance warranting a grant of ILR to yourself, or that granting ILR would alleviate any bullying that you unfortunately suffer.
Whilst the victim support and GP letters indicate that you should be allowed to remain in the UK on a permanent basis, the Secretary of State considers the context of their use of "permanent" in those letters as not one expressing that you should be granted ILR, but that it would not be in your interests to be forced to return to Pakistan. If the Secretary of State is wrong in that contention, neither victim support or your GP have provided any cogent reasons why granting ILR to yourself would solve your mental health issues. It is also the Secretary of State's contention that in discussing your situation with Victim Support and your GP it is likely that any discussion that you would like to be granted ILR would be reconfirmed by them to us solely as an expression of your desire. It would be expected otherwise (and which is lacking) clear and meticulous reasoning as to why granting you ILR is the only solution to solving your problems and concerns.
It must be reiterated that settlement in the UK is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for ILR if they meet the requirements.
It is further noted that you did not apply for ILR but made an application for limited leave the Secretary of State considers that it would be unfair to other migrants, including children who have to complete a probationary period before being eligible for ILR used to be given preferential treatment, especially as an application for ILR was made. It is open to you to make an application to settlement....
"Many other migrants are in the UK who are being supported by local authorities as destitute persons...none of those persons have any automatic entitlement to ILR because of that...."
"There are many families in the UK where some family members are settled here or who are British citizens and other family members who are not...."
"Living in Birmingham, which has a large resident migrant population, it would seem doubtful that you attend a school where you are or have been the only person who has been a migrant to the UK, and whose immigration status may be perceived as being precarious".
"My experience of the immigration system up to now has been extremely stressful, and I have just felt really insecure for the past 12 years. It is always at the back of my head. I feel like I am regarded by the United Kingdom's authorities as 'not belonging' but I very much regard myself as a British national and I don't identify with anywhere else and cannot see myself living anywhere other than here".
She further sets out her fears of being seen as a 'freshie', how her 'secret' has impacted upon her relationships with her peers and gives instances where her sense of insecurity about her immigration status has directly led to her self-harming by cutting herself with a razor blade.
"Children subject to immigration control, and particularly those awaiting a decision or on a short term period of leave to remain in the UK, reported experiencing high levels of anxiety, stress and fear in relation to their insecure immigration status, their uncertainty about their future in the UK and the possibility of being forced to return to their countries of origin. The trauma caused by living in a 'state of limbo' emerged as the dominant source of stress and anxiety in migrant children's lives, and the most important determinant of their wellbeing. It also reduced their ability to recover from trauma they had experienced in the past.
Children overwhelmingly perceived their immigration status as outside of their control, and as a result felt powerless, stripped of their agency, and forced to live in sort of limbo, passively awaiting a decision"
• Children and young people are listened to and what they have to say is taken seriously and acted on
• Where possible the wishes and feelings of the particular child are obtained and taken into account when deciding on action to be undertaken in relation to him or her.
"if there was evidence that the child was seriously distressed by the prospect of a grant of limited leave it might be concluded that it would be in the child's best interest to grant the child ILR to provide a greater degree of certainty for the purposes of their continued treatment or mental well-being".
Conclusion
Upper Tribunal Judge Bruce
6 th June 2019
Decision(s) sent to above parties on:
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Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
[1] Para 3.19 Skeleton Argument for the Applicant