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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LM & Ors, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 2015 (Admin) (20 June 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2015.html Cite as: [2014] EWHC 2015 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 June 2014

Clare Moulder :

1. This is the hearing of an application for judicial review by the claimants who are all nationals of Nigeria. The first and second claimants are husband and wife and the third and fourth claimants are their two minor daughters. The case as put before me in oral argument is firstly, a challenge to the transitional provisions of HC 820 and secondly, a challenge to the legality of paragraph 276BE of the immigration rules in the light of section 55 of the Borders, Citizenship and Immigration Act 2009.
2. At the start of the proceedings I granted the application for an anonymity order (which was unopposed by the defendant) on the basis that two of the applicants are children.

Background

3. The claimants entered the UK on 25 March 2004 with leave to enter as visitors. After the expiry of their leave they remained as overstayers. On 3 September 2010 an application for leave to remain was refused and the family was served with removal decisions. Their appeal was dismissed on 23 December 2010 and permission to appeal was refused. The first claimant made further submissions on 16 March 2012 with his wife and daughters as his dependants. The Secretary of State refused to recognise those further submissions as a fresh claim on 5 November 2012. The claimants served a letter before claim on 19 November 2012.
4. On 22 November 2012 the Secretary of State laid before Parliament a statement of changes to the immigration rules HC 760. Amongst other things this inserted the words (paragraph 201 of HC 760):

"and it would not be reasonable to expect the applicant to leave the UK"

at the end of paragraph 276ADE(iv) of the rules. Paragraph 276ADE deals with applications for leave to remain on the grounds of private life. The changes were expressed to take effect from 13 December 2012. Paragraph 4.3 of the explanatory memorandum to HC 760 expressly stated that:

"if an applicant has made an application for entry clearance or leave before 13 December 2012 [under paragraph 276 ADE(iv)] and the application has not been decided before that date, it will be decided in accordance with the rules in force on 12 December 2012."

5. The Secretary of State responded to the letter before claim in the decision letter of 30 November 2012. That letter gave further consideration to the claimants' claims in particular the position of the two children. The letter contained the following passage at page 2:

"you are respectfully reminded that the requirements of paragraph 276 ADE are to be met by the applicant, who, in this case is Mr [M]. [EM] and [EuM] are merely dependents on their father's claim. Should the children wish to make applications under paragraph 276 ADE in their own right, then it is, of course, open to them to do so. However, you are respectfully reminded both of the impending change in the immigration rules, due to take place on 13 December 2012 and that such an application is chargeable."

6. On 12 December 2012 the third and fourth claimants made two independent applications to the Secretary of State under paragraph 276ADE. On the same day the Secretary of State laid before Parliament the statement of changes HC 820. Paragraph 1 provided that the changes introduced by paragraph 201 of HC 760 "shall apply to all applications decided on or after 13 December 2012, regardless of the date the application was made."
7. The explanatory memorandum stated (paragraph 2.1):

"the purpose of these changes is

to apply most of the changes to the immigration rules on family and private life contained in the statement of changes in immigration rules laid on 22^nd of November 2012 (HC 760) to all applications decided on or after 13 December 2012, rather than only to applications made on or after that date. This will provide greater clarity for applicants and for UK border agency caseworkers as to the requirements in respect of the family and private life applicable to all applications decided from 13 December 2012." [Emphasis added]

The explanatory memorandum at paragraph 7.3 states:

"the changes in HC 760 mainly have the effect of clarifying and simplifying the rules to reflect operational experience, since major changes were implemented on 9 July 2012 and to make the rules as clear and comprehensive as possible. It is appropriate that UK border agency caseworkers should be able to apply those changes to any application relating to family or private life which falls to be decided on or after 13 December 2012."

Paragraph 7.4 states:

"to the extent this approach may disadvantage an applicant whose application under the family or private life rules on or after 9 July 2012 was not decided before 13 December 2012, this is justified because the changes made by the statement of changes HC 760 correctly reflect the Secretary of State's view of the proper balance to be struck under article 8 of the European Convention on Human Rights….. between individual rights and the public interest, and of how best to safeguard the welfare of children. Published UK border agency guidance will make clear to caseworkers that such cases should not be refused because they do not meet a new requirement of the family or private life rules in force from 13 December 2012, without being given a reasonable opportunity to demonstrate whether they meet that new requirement."

8. On 27 March 2013 the child claimants' applications were refused. On 5 July 2013 permission was granted on the application for judicial review by Mr John Howell QC, sitting as a deputy judge in respect of a challenge to HC 820 but not to the claimants' fresh claim challenge. The fresh claim challenge is no longer being pursued on the basis that the decision of 5 November 2012, which was originally challenged by the judicial review proceedings, was withdrawn.
9. When granting permission on this application for judicial review, Mr John Howell QC commented:

"it is at least arguable that the change made by HC 820 "to provide greater clarity for applicants and for UK border agency caseworkers as to the requirements in respect of the family and private life applicable to all applications decided from 13 December 2012" was unlawful. It is at least arguable (i) that applicants before that date, who had relied on the implementation provisions of paragraph 201 of HC 760 (such as two of the claimants here in particular given what was said in the letter from the UKBA dated November 30, 2012) had a legitimate expectation that paragraph would not apply to their applications and (ii) that the reason provided for the change does not provide a sufficiently compelling reason in the public interest for disappointing it (given that it was already clear from HC 760 itself to applicants and decision-makers how applications made before December 13, 2012, were to be determined after that date)."

10. The March decisions were withdrawn and new decisions were made in respect of the child claimants on 5 July 2013 granting leave to remain for 30 months until 5 January 2016. The decision letters stated that they should apply for further leave to remain before the expiry of their current grant and providing they continue to meet the criteria as set out in Ex1 of Appendix FM or the relevant legislation at the time of the application they will qualify for another grant of 30 months. Further applications will need to be made until 120 months have accrued after which they can apply for settlement. The parents were granted leave in line with the children on 9 July 2013. All the claimants have now been granted residence permits and have leave to remain until 5 January 2016.

Permission to amend grounds

11. The claimants originally sought permission to amend their grounds of claim in two respects. However the second ground set out in the amended grounds filed with the court was not pursued at the hearing.
12. By Ground 3, relying on the decision in R (SM & Anor) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) the claimants seek to challenge the lawfulness of the grants of leave pursuant to paragraph 276BE on the basis that the immigration rule fetters the Secretary of State's discretion to grant child applicants longer than 30 months leave to remain and that this is inimical to a fact sensitive consideration of the child's best interests as required by section 55 of the Borders, Citizenship and Immigration Act 2009.
13. The claimants formally filed their amended Grounds of claim on 26 September 2013 and the defendant filed her detailed grounds of defence, including representations in respect of the application for permission to amend grounds on 17 April 2014. Thus, there can be no argument in this case that the claimants have sought to amend their grounds at the last minute, or that the defendant has not had an opportunity to respond to the amendments sought and counsel for the defendant stated at the oral hearing that he did not oppose the application to amend the grounds. Further I took account of the fact that the decision to grant the claimants leave to remain during the currency of the proceedings meant that the scope of the challenge has changed since the original grounds were filed.

Conclusion

14. Without prejudging the arguments on this point it seems to me that the matter is clearly arguable as that phrase is understood in this context and it is in the interests of justice that the matter be considered. I therefore granted permission to amend the grounds to include this challenge.

Legal framework

15. Paragraph 276ADE: Paragraph 276ADE sets out the requirements to be met by an applicant for leave to remain on the grounds of private life:

"276 ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3.and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

276BE. Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE are met or, in respect of the requirements in paragraph 276ADE(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under paragraph 276BE. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. [Emphasis added]

[Indefinite leave to remain – paragraph 276DE

276DE. The requirements to be met for the grant of indefinite leave to remain on the grounds of private life in the UK are that:

(a) the applicant has been in the UK with continuous leave on the grounds of private life for a period of at least 120 months. This continuous leave will disregard any period of overstaying between periods of leave on the grounds of private life where the application was made no later than 28 days after the expiry of the previous leave. Any period pending the determination of the application will also be disregarded;

(b) the applicant meets the requirements of paragraph 276ADE or, in respect of the requirements in paragraph 276ADE(iv) and (v), the applicant met the requirements in a previous application which led to a grant of limited leave to remain under paragraph 276BE;

(c) the applicant does not fall for refusal under any of the grounds in Section S-ILR:Suitability-indefinite leave to remain in Appendix FM;

(d) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, [in accordance with Appendix KoLL]; and

(e) there are no reasons why it would be undesirable to grant the applicant indefinite leave to remain based on the applicant's conduct, character or associations or because the applicant represents a threat to national security.

[276DF]"

S55 of the Borders, Citizenship and Immigration Act 2009

Duty regarding the welfare of children:

"(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).

…..

(6) In this section—

"children" means persons who are under the age of 18;" [Emphasis added]

Grounds of Challenge (as amended)

1. The statement of changes introduced by HC 820 was unlawful on the grounds of its capriciousness and that that capriciousness offends the principle of legal certainty and in turn the rule of law.

2. [deleted]

3. Paragraph 276BE of the rules is incompatible with section 55 of the 2009 Act insofar as it provides that successful applications under paragraph 276 ADE shall be met with a grant of leave for no longer than 30 months and precludes case specific considerations.

Ground 1

Preliminary point: ground 1 now academic

The issue before the court

16. The defence submit that ground 1 is now academic. The claimants' applications have been granted. They have not been affected in any way by HC820.
17. The defence referred to the dictum of Lord Slynn in R v Secretary of State for the Home Department, Ex Parte Salem [1999] 1AC 450 at 457A:

"the discretion to hear disputes, even in the area of public law, must however, be exercised with caution and appeals which are academic between the parties should not be heard. unless there is a good reason in the public interest for doing so, as for example (but only by way of example) where a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated, so that the issue will most likely need to be resolved in the near future." [Emphasis added]

18. The defence also rely on the judgment of Silber J in R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) paras 32-37 and in particular:

"in my view, the statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances, such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact sensitive. If the courts entertained academic disputes in the type of application now before the court which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs."

19. The defendant submits that the present case does not satisfy that test. There are no exceptional circumstances which would justify the court hearing the claim. There is no evidence of any other outstanding cases raising the same point. There is no litigation, currently before the court which has raised this point and it is extremely unlikely that any will arise from now on. It is necessarily a time-limited point.
20. In any event, the claimants have been granted leave and the defence submit have lost nothing from the Secretary of State's action in introducing HC 820. The declaration which they seek would not avail them, but would merely create unnecessary uncertainty.

Claimants' submissions

21. Counsel for the claimants submitted that this is a case which satisfies the exceptional circumstances test referred to by Silber J at paragraph 36 of Zoolife. He referred to the order granting permission for the judicial review in support of this submission and the observations of Mr John Howell QC (set out above) that it is arguable that the change made by HC 820 was unlawful. Further, although counsel acknowledged that the defendant said that there were no other cases and the claimant's own freedom of information request enquiring after the number of other applications made under paragraph 276ADE before and after 12 December 2012 had been refused, Mr Halim submitted that there must have been applications made before 13 December and if, therefore, there were to be a declaration by the court that HC 820 was unlawful, the Secretary of State will have to reconsider these cases.
22. Counsel submitted that this is not a case which is fact sensitive and is to be contrasted with the position in Zoolife where the statutory objection to the appointment of the inspector had been withdrawn and the matter was held to be academic. In this case Counsel submitted that the illegality does not fall away merely as a result of these claimants having been granted leave.
23. Lastly counsel submitted that the outcome has a bearing on future applications for indefinite leave to remain under the rules as rule 276DE requires an applicant to have met the requirements in paragraph 276ADE(iv) as they were in a previous application and therefore it is important to establish whether the more onerous version of the rule applies.

Defence submissions

24. In response counsel for the defendant pointed out that in Salem the legal issue still remained, but the matter was academic for the particular applicant. Counsel acknowledged that Lord Slynn (456 G) accepted that the court has a discretion to hear the appeal even if there is no longer a matter to be decided which will directly affect the rights and obligations of the parties, but (at 457 A: set out in full above) states that the discretion must be exercised with caution and be heard only if there is a good reason in the public interest for doing so.
25. Counsel further submitted that the question of whether the rule is unfair depends on the context and therefore one has to look at the particular claimants.
26. Finally counsel confirmed that the Secretary of State is not aware of any direct challenge currently before the court to HC 820. He acknowledged that there have been 4 or 5 cases where the "timing issue" has been raised and commented on, but not raised as a ground of challenge.
27. He rejected the submission that future applications would be impacted since the Secretary of State had already acknowledged when granting leave that the claimants had met the test under the new rules.

Discussion

28. Although initially it might appear that the question of whether the Secretary of State can reverse her policy in this way is capable of being reviewed by reference to issues of principle and without reference to the factual context, the reliance on arguments of unfairness and capriciousness mean that the matter has to be viewed in context. In relation to the allegation of capriciousness the reasons given by the Secretary of State for introducing the changes in the rules are relevant and the effect of the changes and any resultant unfairness must also depend on the circumstances. In my view, therefore ground 1 is fact sensitive and the point at issue is necessarily confined to this particular statement of changes and is not of wider application.
29. I accept the submission of counsel for the defendant that this matter is necessarily time-limited concerning as it does the transitional provisions for the introduction of the amendment to the rules, which occurred in December 2012. Although there must have been applications prior to 13 December 2012 pursuant to rule 276ADE, the only applications which are affected by the change to rule 276ADE(iv) are those submitted in the comparatively short window between the laying before Parliament of HC 760 on 22 November 2012 and the laying before Parliament of HC 820 on 12 December 2012. Bearing in mind the time elapsed and in the absence of any evidence to suggest that there are other similar cases in existence or anticipated before the courts (and taking note of the confirmation to this effect provided by counsel for the Secretary of State in the course of oral submissions), I am not persuaded that this case meets the test laid down by Lord Slynn that the issue will most likely need to be resolved in the near future.
30. I also do not accept the submission of counsel for the claimants that the observations of the deputy judge to the effect that the change was arguably unlawful provides support for the contention that there is good reason in the public interest to hear a dispute which has become academic between the parties. In my view there is no indication that the deputy judge regarded this as a test case. I also do not accept the submission that this matter has a bearing on future applications by the claimants given that, as stated above, the defendant has accepted that the claimants have met the more onerous test applying the new rules.
31. In my view the arguments in relation to ground 1 are dependent on the facts and there would not appear to be any similar cases (let alone a large number) in existence or anticipated before the courts. I conclude that ground 1 is now academic between the parties and there is no reason in the public interest which means that the issue should be determined by the court.
32. However, notwithstanding this conclusion, following the approach of Silber J in Zoolife it seems to me that it is necessary for me to consider the submissions on the merits on ground 1 in case I am wrong on the academic issue. For completeness therefore I will do so. It does follow however, that my comments on the merits of ground 1 will be obiter dicta.

Ground 1: Substantive challenge

Claimants' submissions

33. The claimants challenge to HC 820 relies on the principle as set out by Lord Bingham in "The Rule of Law" that:

"..the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able, without undue difficulty to find out what it is, even if that means taking advice… and the answer when given should be sufficiently clear that a course of action can be based on it. There is English authority to this effect, and the European Court of Human Rights has also put the point very explicitly:

'the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case… a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able-if need be, with appropriate advice-to foresee to a degree that is reasonable in the circumstances, the consequences which a given action may entail'."

34. Counsel for the claimants also relied on the words of Lord Diplock in Black Clawson Ltd v Papierwerke [1975] AC 591 at 638:

"the acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it."

35. Applying that case, in the House of Lords in R (Munjaz) v Mersey Care NHS Trust [2005] 3 WLR 793 Lord Bingham held (at 34) that:

"The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied."

36. Counsel submitted that relying on these statements an applicant should be able to plan his affairs with certainty and so long as the application was submitted, the understanding of the applicant was that it would be determined on the basis of the rules pre-13 December 2012. He further submitted applying the dicta cited above in Munjaz that any interference must not be random or arbitrary.
37. Counsel further referred to the fast changing nature of the immigration rules, in particular the observation of Longmore LJ in DP (United States of America) v Secretary of State for the Home Department [2012] EWCA Civ 365 that "the frequent changes of the law in immigration field and the changes of Home Office policy guidance which are almost impossible for lawyers to keep up with, let alone ordinary people" and of Lord Hope in Alvi v Secretary of State for the Home Department [2012] UKSC 33, who endorsed the Court of Appeal, that:

"the speed with which the law, practice and policy change in this field is such that litigants must feel they are in an absolute whirlwind and indeed Judges of this court often feel that they are in a whirlwind in which it is very difficult to pause for the reflection which should accompany sound judgement."

38. Counsel referred to the change in the transitional provisions between HC 760 and HC 820 set out above and argued that this course of conduct could not be reconciled with what the rule of law demands. He stressed that HC 820 was laid before Parliament on 12 December, a single day before the change took effect. He also referred to the stated motivation for making the changes as set out in HC 820 (set out above) and submitted that the justification of providing greater clarity was unsustainable. He further submitted that the negative resolution procedure was an unsatisfactory way to pass rules and that by so acting the Secretary of State retroactively prejudiced applicants and acted in an arbitrary and unlawful manner.

Defence submissions

39. Counsel for the defendant submitted that the stated purpose of HC 820 and the change to the transitional provisions as set out in paragraph 2.1 of the explanatory memorandum was to provide greater clarity for applicants and caseworkers and there is nothing irrational in saying that there should be one test and one set of rules. Counsel referred to paragraphs 7.3 and 7.4 of the explanatory memorandum that the changes in HC 760 reflect operational experience since major changes were implemented in July 2012 and that, to the extent any applicant is disadvantaged this is justified because the changes made by HC 760 reflect the Secretary of State's view of the proper balance to be struck under article 8 between individual rights and the public interest. Paragraph 7.4 also states that guidance will be issued to caseworkers to enable applicants to demonstrate whether they meet that new requirement. However counsel acknowledged that in fact no such guidance was issued in the UK.
40. Counsel submitted that the extract relied on from Munjaz concerned article 8 and there is no suggestion here that the process did not comply with article 8.
41. Whilst accepting the abstract principles raised by the claimant, the defendant questions how they apply in this case. He relied in turn on the statement of Lord Brown in Odelola at 33:

"in deciding what simple fairness demands in the present context, it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise such fresh rules as appears to her to be required in the circumstances."

And at paragraph 39:

"I have no doubt that the changes in the immigration rules, unless they specify to the contrary, take effect whenever they say they take effect with regard to all these applications, those pending no less than those yet to be made."

Claimants' Reply

42. Counsel submitted that the defendant cannot act in a way which is capricious. He submitted that there was no benefit to applicants from the change given that it applied a more onerous provision and the explanation that the change reflected article 8 does not explain the change in the defendant's policy as to when the rule takes effect. Further, he submitted that in the past the defendant had applied transitional provisions so that caseworkers were obliged to operate different versions of the rules.
43. Counsel sought to distinguish Odelola on the basis that in this case the Secretary of State had said that the rules change would not apply if the application was submitted before 13 December and that Lord Neuberger at paragraph 53 of his judgment in that case accepted that the presumption against retrospectivity can apply to changes to the immigration rules.

Discussion

44. Whilst accepting the general principles that the law must be clear and a citizen must be able to foresee the consequences which a given action may entail, this issue has to be considered in the context of the relevant legislation. In this regard, it seems to me that the quoted extracts of Lord Diplock in Black-Clawson and of Lord Bingham in Munjaz by the claimants are of no assistance being taken out of context and from cases where the issues being addressed were wholly different.
45. The Secretary of State has express power pursuant to section 3 (2) of the Immigration Act 1971 to formulate rules from "time to time" which regulate the control of immigration into the UK. As set out in that section, statements of the rules, or of any changes in the rules have to be laid before Parliament and if a statement laid before Parliament is disapproved by a resolution passed within 40 days beginning with the date of laying then the Secretary of State is obliged to make such changes to the rules as appear to the Secretary of State to be required in the circumstances.
46. As stated in Odelola by Lord Brown at paragraph 35:

"the immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain."

47. It was submitted that the present case is very different to the facts of Odelola. In Odelola the application for leave to remain was decided under the version of the immigration rules which came into force after the date of her application, but prior to the Secretary of State's decision. The question before the House of Lords was whether the new rules applied to the applicant's application or whether the presumption against retrospectivity meant that it did not extend to the applicant's application. Lord Neuberger acknowledged that the common law presumption against retrospectivity could apply to amendments to the immigration rules but that the applicant did not have a right to have her application determined by reference to the old rules. He said at paragraph 53:

"no doubt she had that hope or even that expectation but she did not have that legal right."

He also said that the issue in that case was ultimately one of interpretation and that the presumption against retrospectivity is itself a rule of construction (paragraph 55):

"Indeed, the presumption against retrospectivity is itself a rule of construction, or, perhaps more accurately, a factor to be taken into account when interpreting a statute. It is not some sort of substantive or even procedural legal right. That is well illustrated by the fact that, in this case, the applicant realistically disclaims any reliance on the doctrine of legitimate expectation."

48. In this case there is no ambiguity in the rules, such that any question of interpretation arises or rule of construction has to be applied. Therefore, as stated by Lord Neuberger there is no substantive legal right against retrospectivity on which the claimants can rely.
49. The immigration rules can be expected to be amended from time to time as needs and perceptions change and, as is clear from the judgments in Odelola, whilst there may be an expectation that the application would be dealt with in accordance with the rules as the applicant understood them at the time of the application, there is no legal right which prevents the Secretary of State from introducing amendments to the rules, provided that she lays them before Parliament as required to do so by the Immigration Act 1971 and provided that if Parliament so resolves, she makes such further changes as she deems necessary in the circumstances.
50. The observations extracted from cases concerning the frequency and speed with which changes are made to the immigration rules in no way affect the legality of the rules and any changes. Further, such observations provide no legal basis for any challenge on the grounds of "unfairness".
51. Similarly, the suggestion that it was "unfair" that the change to transitional provisions was only laid before Parliament one day before they came into effect has no basis as a legal challenge. Parliament has specified the way in which the Secretary of State can make changes to her immigration policy and the Secretary of State complied with that procedure. Further, it is not apparent what additional prejudice was caused to the claimants by the fact that the changes were introduced the day after they were laid before Parliament. The claimants' applications would always be determined by the rules in force at the date of determination. Even if there had been a gap of several weeks between the laying of the new transitional provisions and the provisions coming into force, there is no certainty that the claimants' applications would have been dealt with under the old transitional provisions.
52. I reject the submission that allowing a single day between the laying of HC 820 and it coming into force rendered the negative resolution procedure entirely toothless. The 40 day period runs from the laying of the statement before Parliament and the full 40 day period would run as normal in this case from the date on which it was laid before Parliament. The statutory procedure for challenge remained in effect, and should Parliament have wished to do so, the Secretary of State could have been required to make further amendments to HC 820.
53. There has been no argument before me that the claimants had a vested right or a legitimate expectation. Indeed, although permission was granted with an observation from the deputy judge that it was arguable that the claimants had a legitimate expectation that the new rules would not apply, counsel for the claimants did not seek to put the case on the basis of any legitimate expectation.
54. To my mind the situation here is, in essence, no different from the position in Odelola: at the time of the application the claimants had an expectation that the current rules would apply but if the Secretary of State determined to vary the rules before their application was determined, the claimants had no legal rights which were infringed. The argument on "unfairness" is not made out on the facts of this case given that the claimants have been granted leave.
55. Although the reasoning behind the requirement to change the transitional provisions so quickly from the position adopted in November 2012 is not clear from the explanatory memorandum, and I accept the submission that previously caseworkers had been able to operate transitional provisions and apply two different sets of rules, in my view the Secretary of State is not required to justify any changes to the rules other than through the Parliamentary process. The claimants' challenge to the stated justification fails by some measure to establish capriciousness on the part of the Secretary of State.
56. It seems to me that the situation here, although differing in its fact pattern from Odelola, amounts to the same issue as a matter of legal analysis and the decision of the House of Lords is therefore binding on me. Applying the dictum of Lord Brown cited above, the Secretary of State was free to change the rules and those changes take effect whenever they say they take effect with regard to all applications including pending applications.
57. Accordingly even if I am wrong on the question of whether this should be heard notwithstanding that the claim is academic, ground 1 of the challenge for judicial review fails.

Ground 3

Claimants' submissions

58. Under paragraph 276BE of the immigration rules, limited leave to remain on the grounds of private life may be granted for a period not exceeding 30 months. The rule does not distinguish between adults and children and counsel submitted that the rule was therefore unlawful since a rule made under section 3 of the Immigration Act 1971 must not conflict with the statutory duties under section 55 of the Borders, Citizenship and Immigration Act 2009.
59. To support this submission Counsel relied on the case of SM and in particular paragraphs 36 and 37 where Holman J stated:

"36. The exercise of the overall discretion under section 3 (1) (b) of the Immigration Act 1971 involves making at least two discrete discretionary decisions: whether to give leave to remain at all; and if so, whether for a limited or for an indefinite period. If the decision is to give leave for a limited period, then a third discretionary decision is how long that limited period should be. Further discretionary decisions may fall to be made under section 3 (1) (c) which relates to attaching conditions, but it is not in point in the present case.

37. The language of section 3 (1) (b) itself is very general and in exercising the discretions the decision maker must perform or discharge any other relevant statutory duty which is not excluded expressly or by necessary implication, which section 55 is not. In my view, the duty under section 55 must be performed or discharged when exercising every stage of the discretions under section 3 (1) (b)."

60. In that case the policy document precluded the decision maker from case specific discharge of the duty under section 55, as explained in the jurisprudence, when considering duration.
61. Counsel for the claimant therefore submits that rule 276BE is ultra vires because it does not comply with section 55. To the extent that the defence relies on the Best Interests Guidance^[1] counsel submitted that the guidance does not rescue the rule because the rule is a blanket rule that limited leave will not exceed 30 months. He also referred to the fact that the requirements for indefinite leave to remain under 276DE require a fixed period of 120 months' continuous leave. Counsel submitted, applying SM, that section 55 must be in every discretionary decision.
62. In the Best Interests Guidance issued in January 2014 at paragraph 32 it states that:

"where a case worker 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 for further consideration."

And paragraph 33:

"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 the rules for granting leave of a different period than 30 months."

63. Counsel submitted that this guidance was effectively reintroducing an "exceptional" test and making immigration policy the primary consideration. This approach was rejected by Holman J at paragraph 52 of his judgment:

"most tellingly, at the end of the quoted passage Mr Harrison refers to public policy considerations "only being outweighed in an exceptional case" and to the case not exhibiting "any exceptional or compelling features which would justify granting ILR rather than DLR". This appears to add a requirement of "exceptional or compelling features" in a situation where the secretary of state is required (in whichever order) to make the welfare of the child(ren) a primary consideration; to consider countervailing factors (which of course include considerations of immigration policy as a very important factor); and to balance the two. The language of the letter does not make the welfare of the children a primary consideration. It makes immigration policy the primary consideration, only to be outweighed by exceptional or compelling features. This is far removed from the construction and effect of section 55 as described by any of the justices of the Supreme Court in HH and ZH."

64. Counsel submitted that the Secretary of State in this case was on notice of the circumstances of the children and ought to have granted indefinite leave to remain. He referred to the witness statements which were before the Secretary of State at the time of making her decision, together with the report of the independent social worker. The defendant had the evidence in front of her, but did not exercise her discretion to grant indefinite leave to remain. As a result, the children will be required to reapply which will create a period of uncertainty and the social worker's report highlighted the impact which such uncertainty would have on the children. It was not in the best interests of the children to grant a period of 30 months' leave and the blanket upper limit makes no distinction between children and adults. The claimants can only apply for ILR at 120 months. He therefore submitted that the rules are unlawful and the policy does not rescue it.

Defence submissions

65. Counsel for the defendant submitted that the duty under section 55 is that the Secretary of State should discharge her functions having regard to the need to safeguard and promote the welfare of children. This means that where rule 276BE provided for a period of 30 months' limited leave to remain the Secretary of State would comply with her duties under section 55 if she had regard to the children's best interests in applying the rule. The provision does not mean that the rule needs to refer to section 55 but the rule should be read alongside the policy. The Secretary of State can grant longer leave outside the rules and it does not matter for the purposes of determining compliance with section 55 that the matter is dealt with outside the rules.
66. Under paragraph 28 of the Best Interests policy the Secretary of State had a discretion to grant a longer period.
67. Further prior to 19 July 2013 the claimants had not asked for a longer period. It was only after they had been given a grant of limited leave of 30 months in accordance with the rule that the claimants decided that they wanted a longer period. Counsel submitted that the onus is on the claimant to ask for leave and the defendant cannot be expected to grant something else.

Discussion

68. With regard to the claimants' submissions based on SM, it is clear from that case that when deciding how long a period of limited leave should be granted the Secretary of State must apply section 55 and take account of the needs of the child as a primary consideration. However in this case the Secretary of State gave leave to remain in application of the immigration rules rather than, as in that case, exercising a discretion outside the rules.
69. Therefore in my view, the decision in SM is not authority for the proposition that the duty under section 55 can only be discharged by being written into the relevant rule. I see no reason why the Secretary of State cannot have due regard to the needs of the child by making the decision through a combination of applying the rules and exercising discretion outside the rules. Since the obligation under section 55 as interpreted in SM applies to the decision of whether to grant leave and for how long, it does not, it seems to me, require that the rules per se should either expressly refer to, or give effect to, section 55.
70. I therefore reject the submission that the rule is ultra vires.
71. I turn then to the policy guidance and the submission of counsel for the claimants that the Best Interests Guidance is applying the test of exceptional circumstances and giving primacy to public policy considerations. I accept the position is as set out by Holman J, namely that the welfare of the children must be a primary consideration and an approach which allowed public policy considerations to be outweighed only in exceptional cases would not be compliant with the obligations under section 55 as interpreted by the Supreme Court. However, it seems to me that the reliance of counsel for the claimants on paragraphs 32 and 33 of the Best Interest Guidance is taken out of context. Although the entire section is entitled "Exceptional circumstances that might warrant a grant of leave outside the rules" the first paragraph within this section dealing specifically with the interests of children and granting a longer period of leave is paragraph 28 and this clearly states:

"there may be cases where a longer period of leave outside the rules is considered appropriate, either because it is clearly in the best interests of the child (and any countervailing considerations do not outweigh those best interests) or because there are other particularly exceptional or compelling reasons to grant limited leave for a longer period or to grant indefinite leave to remain." [Emphasis added]

Further paragraph 29 states:

"caseworkers must also have regard to the best interests of the child as a primary consideration (but not the only other paramount consideration) when deciding the period of leave to be granted. Whilst the expectation is that a period of 30 months leave will generally be appropriate, there may be cases where evidence is provided demonstrating that a longer period of limited leave (or ILR) is required in order to reflect the best interests of the individual child under consideration."

72. In my view this is a clear and correct statement of the approach which caseworkers are required to adopt in making a decision and demonstrates that caseworkers are able, and indeed required to have regard to the best interests of the child as a primary consideration and are able to grant a longer period of leave than the 30 months stipulated in the rule.
73. As stated above, provided the decision is made having regard to the best interests of the child as a primary consideration, in my view there is no requirement for the rule to be considered in isolation and the combination of the rule and the policy allows Secretary of State to discharge her duties under section 55.
74. Counsel for the defendant conceded that the best interests policy was not in force at the time of the decision and the discretionary leave policy would not have applied. He submitted however, that the Secretary of State had a residual discretion to grant leave outside the rules and the Secretary of State is not obliged to have guidance.
75. In my view the Best Interests Guidance now makes it clear for the reasons stated above that rule 276BE taken together with the policy guidance enables the Secretary of State to discharge her immigration functions in a way which is compatible with section 55 of the 2009 Act.
76. Insofar as the decision in question in July 2013 was taken in the absence of specific policy guidance the position in my view is as follows:

1) The claimants applied for limited leave to remain under the rules.

2) The Secretary of State determined whether or not to grant limited leave to remain under the rules.

3) This determination was the exercise of an immigration function and accordingly the Secretary of State was obliged to consider the interests of the child as a primary consideration in determining whether to grant leave.

4) Unlike the position in SM this was not an application for discretionary leave. The period of leave for which the claimants applied was fixed. The claimants did not ask the Secretary of State to exercise a discretion and grant a longer period of leave.

5) The Secretary of State decided whether or not the claimants met the requirements of rule 276ADE, including the requirements of subparagraph (iv), and in so doing was obliged to have regard to the best interests of the claimants as a primary consideration.

77. The Secretary of State cannot be criticised for failing to consider a matter which was not raised with her. In other words given that the claimants only sought leave for a period of 30 months I see no reason why the defendant should have considered of her own volition a longer period.
78. In my view the position in this case would have been different if the claimants had sought a period of leave of greater than 30 months (prior to the relevant decision being made and not merely in the letter from the claimants' solicitors dated 19 July 2013 once the decision to grant 30 months leave to remain had been made) and if in making the decision as to the period of leave, the defendant had failed to have regard to the best interests of the children as a primary consideration. However in this case it is clear from the application made on 12 December 2012 that it was an application for leave to remain under paragraph 276ADE and it was not an application for any longer period of leave to be granted.

Conclusion

79. For the reasons stated above, the claim under this ground also fails. Whilst a future application for a longer period of leave might well on the evidence before the court as to EM's health (and on the basis of the current rules and policy) result in a period of greater than 30 months being granted, paragraph 276BE is not unlawful as alleged and the decision to grant a period of 30 months as requested by the claimants was also not unlawful.
80. This judicial review claim is dismissed. Judgment accordingly.

Note 1    “Guidance on consideration of a child’s best interests under the family and private life rules and in Article 8 claims where the criminality thresholds in paragraph 398 of the rules do not apply” (January 2014)    [Back]