Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 52
P3/13	OPINION OF LORD DRUMMOND YOUNG in the petition of MRS OLINA WALLOWA ANDERSON, FE (AP) Petitioner; for Judicial Review of decisions of the Secretary of State made in October 2008 et separatim September 2012 ________________

Petitioner: McGuire; Drummond Miller LLP

Respondent (Home Secretary, represented by Advocate General for Scotland): MacIver; Solicitor to the Advocate General

4 April 2013

[1] The petitioner seeks judicial review of two decisions made by immigration officials acting on behalf of the Secretary of State for the Home Department. The respondent is the Secretary of State. The petitioner is a citizen of the United States of America. In December 1996 she married a British citizen, John Anderson. They have two children, born respectively in 1997 and 2005. Both children are British citizens.

The petitioner's immigration history
[2] On 22 October 1998 the petitioner was granted indefinite leave to remain in the United Kingdom. Between 1998 and 2001 she and her husband lived together in the United Kingdom. In 2001 they went to the United States. The petitioner avers that this was for family reasons; the petitioner's grandparents were both ill and the couple were required to assist in their care. The petitioner further avers that while she and her husband were in the United States he sustained a serious back injury which prolonged the couple's stay there. In a signed statement provided to the First-Tier Tribunal in the course of earlier proceedings she stated that her husband's injuries were relatively serious and that, following his injury, he required to retrain because he had become incapable of heavy physical labour. The petitioner further states that after retraining her husband worked for a time as a property manager; this was necessary to enable them to raise sufficient funds to move back to the United Kingdom. The petitioner and her husband returned to the United Kingdom in October 2008 and have lived here ever since.

[3] When they returned to the United Kingdom the petitioner's passport was stamped, either 6 or 8 October 2008, to show that she had been granted entry to the United Kingdom for six months as a visitor. The petitioner avers that she cannot remember her passport being stamped on her return to the United Kingdom, and that when she re-entered the United Kingdom in October 2008 she believed that she still retained indefinite leave to remain here. She further avers that when she returned to the United Kingdom on that occasion, apart from the stamp on her passport, she was given no indication by the immigration authorities that her right to indefinite leave to remain in the United Kingdom had been in any way curtailed.

[4] The petitioner next departed from the United Kingdom on 7 May 2012 to visit her father in the United States. She avers that at the time of her departure she believed that she continued to have indefinite leave to remain in the United Kingdom. She returned to the United Kingdom on 25 May 2012, still believing that she had indefinite leave to remain. She was, however, refused leave to enter the United Kingdom in terms of paragraph 24 of the Immigration Rules (HC 395) because she did not have the requisite entry clearance to enter the United Kingdom. She avers that it was only at this stage that she became aware that her previously granted indefinite leave to remain was no longer extant.

[5] On her return to the United Kingdom on 25 May 2012 the petitioner was granted temporary admission for a period of one week. Directions for her removal were made by the respondent. During that week the petitioner's legal representatives made representations to the respondent that she should be allowed to remain in the United Kingdom. They subsequently raised judicial review proceedings to prevent her removal. The respondent agreed to cancel the removal directions and accorded the petitioner a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) on the basis that her forced removal from the United Kingdom might constitute a breach of her rights under article 8 of the European Convention on Human Rights. On that basis the petitioner agreed to the dismissal of her petition for judicial review. The petitioner's appeal before the First-tier Tribunal took place on 8 August 2012. By determination issued on 22 August 2012 the Immigration Judge allowed the petitioner's appeal, finding that it would be a breach of the petitioner's rights under article 8 of the European Convention on Human Rights if she were removed from the United Kingdom. The respondent did not appeal against that decision.

[6] Thereafter the petitioner was granted leave to remain in the United Kingdom for 30 months; this was said to be in accordance with Immigration Directorate Instructions on transitional arrangements (paragraph 5.2 and appendix FM of that document). For reasons that are perhaps obvious the petitioner did not regard that result as satisfactory, and on 3 September 2012 her solicitors wrote to Border Force North at Glasgow Airport, as representing the respondent, to request that the petitioner should be granted indefinite leave to remain in the United Kingdom. Her immigration history was set out, and it was submitted that it would be neither fair nor reasonable for the petitioner to be granted leave to remain for only 30 months. The letter proceeded in part on an erroneous belief that, when the petitioner returned to the United Kingdom in October 2008, a decision was made by the respondent to revoke her indefinite leave to remain; in fact, her indefinite leave to remain was revoked automatically in the manner described in paragraph [8] below. Nevertheless, I do not regard this error as in any way material. The letter went on to refer to paragraph 19 of the Immigration Rules (set out at paragraph [8]), and to submit that the discretion available under that paragraph had not been but should be exercised. The critical point is that the letter made it clear that the petitioner was seeking indefinite leave to remain in the United Kingdom.

[7] Border Force North replied to that letter on 10 September 2012. They refused to grant the petitioner indefinite leave to remain in the United Kingdom. Instead the petitioner was "endorsed" with leave for a period of six months on the basis that she would be granted a further period of 24 months' leave to remain in the United Kingdom at the end of the initial six months period. The material parts of that letter are in the following terms:

"You have [requested] specifically that the Immigration Officer who superseded Mrs Anderson's Indefinite Leave should have exercised discretion in her favour and re-endorsed her Indefinite Leave as a returning resident despite her not meeting the 'two year' rule. I accept that this discretion exists, however there is no evidence that the officer did not consider such discretion and decided not to exercise it. Also, the fact that discretion exists does not mean that it must be exercised.

As you pointed out, under the transitional arrangements, successful family member Human Rights appellants should be granted entry for 30 months without restrictions on employment. Mrs Anderson does not presently qualify for Indefinite Leave to Remain in the United Kingdom for the reasons that I have given above and for the reasons given when Mrs Anderson was refused entry in May. I therefore have no option but to grant entry in line with the transitional arrangements. Unfortunately officers at the Border cannot grant entry for periods longer than 6 months. Mrs Anderson's passport has therefore been endorsed with leave for 6 months, the balance of 24 months will be granted gratis by the UK Border Agency at the end of the 6 month period".

The relevant legislation and the Immigration Rules
[8] The petitioner's legal rights are governed in the first place by article 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000. This provides as follows:

"Leave [to remain in the United Kingdom] shall remain in force either indefinitely (if it is a limited) or until the date on which it would otherwise have expired (in limited, but-

(a) where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse;...".

On this basis, when the petitioner remained in the United States from 2001 to 2008 her indefinite leave to remain lapsed automatically. On her return, paragraphs 18 and 19 of the Immigration Rules applied. Paragraph 18 provides as follows:

"A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:

(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years;...".

This is, however, subject to paragraph 19, which is in the following terms:

"A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life".

Thus the respondent had power to admit the petitioner to the United Kingdom as a returning resident notwithstanding that she was absent from the country for a period substantially in excess of two years prior to her return in 2008.

Legal analysis
[9] In the present application the petitioner seeks three substantive orders: first, reduction of the decision taken in October 2008 to grant leave to enter the United Kingdom for a period of six months; secondly an order for specific performance that the respondent remake that decision and specifically consider granting the petitioner leave to enter the United Kingdom as a returning resident under paragraph 19 of the Immigration Rules; and thirdly an order for specific performance that the respondent should consider granting the petitioner indefinite leave to remain in the United Kingdom outside the immigration rules. The first two of those remedies are intended to challenge the original decision made in October 2008, and the third to challenge the further decision made on 10 September 2012. The decision of October 2008 is challenged on the ground that the respondent, acting through the immigration authorities, failed to consider exercising her discretion under paragraph 19 of the Immigration Rules to allow the petitioner to be admitted as a returning resident. In view of the petitioner's personal and family circumstances it was unreasonable and irrational for the respondent not to consider exercising her discretion under paragraph 19 of the Immigration Rules in the petitioner's favour. The decision of September 2012 is challenged on the ground that, in considering the petitioner's representations, the respondent, acting through the immigration authorities, erred in law in failing to consider granting her indefinite leave to remain outside the immigration rules; in this connection the petitioner founds on R (Munir) v Home Secretary, [2012] UK SC 32, discussed at paragraph [21] below. The respondent opposes the remedies sought. She has also tabled a plea of mora, taciturnity and acquiescence in respect of the decision of October 2008.

The decision of October 2008
[10] In my opinion the petitioner is clearly correct in submitting that the respondent failed to consider exercising her discretion under paragraph 19 of the Immigration Rules, and further that in view of the petitioner's personal and family circumstances it was unreasonable not to do so. It is apparent from its terms and its context that paragraph 19 is designed specifically to deal with cases where a person returning to the United Kingdom has lost indefinite leave to remain as a result of being outside the United Kingdom for more than two years; in such a case the right is lost through the operation of article 13(4)(a) of the 2000 Order. The paragraph confers a discretionary power to treat such a person as a returning resident in appropriate cases. The example given is a person who has lived in the United Kingdom for most of his life. Clearly that would be a strong case for treating such a person as a returning resident; the United Kingdom would usually be the country that he regarded as home, and in such a case it would be quite unreasonable not to permit him to live here on a permanent basis. Nevertheless, that is merely one example; other cases will also require to be considered under paragraph 19.

[11] In the present case it cannot be said that the petitioner had lived in the United Kingdom for most of her life. Nevertheless, when she returned to the United Kingdom in 2008 she had been married to a British citizen for nearly 12 years and had two children then aged 11 and 3; both children were British citizens. Moreover, the petitioner was returning to the United Kingdom with a view to living here with her husband and children; her husband's family live in Ayrshire. The petitioner's husband and children obviously had a right as citizens to reside in the United Kingdom. Thus the potential effect of the petitioner's loss of her indefinite right to remain in the United Kingdom was separation from her family, which included two young children. I find it difficult to imagine a stronger case for consideration of the exercise of the respondent's discretion under paragraph 19.

[12] For the respondent it was emphasized that the petitioner had been absent from the United Kingdom for seven years, having only lived here for four years previously. She had moved away from the United Kingdom "permanently", had been residing with her family in the United States and had no family in the United Kingdom and no home here. It is correct that the petitioner had been residing with her family in the United States, but it does not appear correct, if the petitioner's explanation is correct, that she had moved away from the United Kingdom "permanently". As to the length and nature of absence from the United Kingdom, the petitioner has given reasons for being away: first her grandparents' illness, then her husband's injury, and finally the need to save sufficient funds for the family to return to the United Kingdom. The petitioner was found a credible witness when she referred to these matters before the First-tier Tribunal, and no reason was suggested for disbelieving what she says. Even if that were not so, however, it seems to me that the strength of the petitioner's family ties is a powerful factor in her favour. The statement that she had "no family in the United Kingdom" seems to me both disingenuous and plainly wrong. Her husband's family live in the United Kingdom, and he and the parties' children are British citizens. Thus on any reasonable interpretation of the word the petitioner does have "family" in the United Kingdom. As to her lack of a "home" here, she and her family were returning to the United Kingdom with a view to living here, and at the time when the question of the paragraph 19 discretion arose they had a home here. For these reasons I have no hesitation in holding first, that the respondent has failed to exercise the discretion, and secondly, that failure to consider exercising the discretion was unreasonable, in the sense that no reasonable person in the position of the respondent would do so.

[13] In so holding I am not criticizing the actings of the immigration officer who dealt with the petitioner when she returned in October 2008. It seems clear that the petitioner was processed on a routine basis; her indefinite leave to remain had expired, and she was accordingly prima facie entitled to entry as a visitor. When she returned to the United Kingdom in May 2012, she was told what her status was, and it was at that point that she drew the attention of the immigration authorities to the need to consider the discretion in paragraph 19. That is when the respondent should have considered whether to exercise the discretion in her favour. For the avoidance of doubt, I am not holding that an immigration official who is examining passports must inevitably consider the application of paragraph 19; it is only if the relevance of that article is drawn to the attention of the immigration authorities that a decision has to be made. In a case such as the present, however, the existence of the discretion under that paragraph is clearly of the greatest importance.

[14] I was referred to policy guidance provided by the respondent on the application of paragraph 19. This indicates (SET9.5) a number of factors that are relevant to the exercise of the power. These include the length of the original residence in the United Kingdom, the time that the applicant has been outside the United Kingdom, the reason for the delay beyond the two-year period, the reasons for leaving the United Kingdom and now wishing to return, and the nature of the family ties in the United Kingdom. It is indicated that the longer a person has remained outside the United Kingdom the more difficult it will be for them to qualify for admission. These factors are all plainly relevant to the exercise of the discretion. In the present case, I consider that the nature of the family ties in the United Kingdom may be of great importance, in the manner stated above. No doubt the length of the petitioner's residence in the United Kingdom prior to her departure in 2001 is not very great, and she was absent for seven years. The strength of the family ties, however, might well override these considerations. I am accordingly of opinion that the policy considerations in SET9.5 may support the petitioner's position. I was referred to three cases which can be said to form the basis for the policy guidance in SET9.5: Costa v Home Secretary, [1974] Imm A R 69; Entry Clearance Officer, Dacca v Armat Ali, [1981] Imm A R 51; and R v Home Secretary, ex parte Ademuyiwa, [1986] Imm A R 1. These cases provide a basis for the general policy considerations found in SET9.5 but, as I have indicated, I consider that those considerations may well support the present petitioner's case.

[15] Counsel for the respondent also referred to R v Immigration Appeal Tribunal, ex parte Coomasaru, [1983] 1 WLR 14, where it was indicated that the Secretary of State and Immigration Appeal Tribunal were entitled to take account of the fact that, when an immigrant entered the United Kingdom, he did not ask for the type of entry permit that he subsequently sought; in such a case an explanation should be given in order to establish that it was not a case of change of intention: see Sir John Donaldson MR at 20C-E. I do not think that that case helps the respondent in any way; in the present if the petitioner's averments are correct she thought that she was returning to the United Kingdom with her family and she misunderstood the basis on which she had been admitted in 2008. I was also referred to Home Secretary v Agyen-Frempong, [1986] Imm AR 108, where the Tribunal considered the case of a person who wished ultimately to settle in the United Kingdom but was content to receive a limited leave because his immediate intention was to stay only for a limited time. Counsel submitted that the case indicated the importance of the question as to whether the individual in question intended to settle in the United Kingdom at the time of his or her application. In the present case the petitioner avers that when she returned in 2008 she thought that she still had indefinite leave to remain and that she and her husband were returning "home" to the United Kingdom. If that is so, this case supports the petitioner's position.

Mora, taciturnity and acquiescence
[16] The respondent has a plea to the effect that the petitioner's challenge to the decision of October 2008 is barred by mora, taciturnity and acquiescence. This is based on the delay of four years that occurred between the petitioner's return to the United Kingdom and the letter sent on 3 September 2012 requesting that she be given indefinite leave to remain. The requirements of the plea of mora, taciturnity and acquiescence are stated in Assets Co Ltd v Bain's Trustees, 1904, 6 F 692, by LP Kinross at 705:

"But in order to lead to such a plea receiving effect, there must, in my judgement, have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party".

In Somerville v Scottish Ministers, 2007 SC 140, the meaning of the plea was discussed at some length, and summarized in the following terms (at paragraph [94]):

"Mora, or delay, is a general term applicable to all undue delay.... Taciturnity connotes a failure to speak out in assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present".

The fullest discussion of the application of the plea to judicial review and rights in public law is found in the opinion of Lord Nimmo Smith in Singh v Home Secretary, 2000 SLT 533, at 537, cited in Somerville, supra, at paragraph [92]. In that discussion, it is accepted that in some cases the passage of time, as related to the surrounding circumstances, may yield the inference of acquiescence. More commonly, however, there will have been an alteration of the position of the party advancing the plea which, taken together with the passage of time, yields the inference of acquiescence. Moreover, the petitioner may be in a position to put forward an explanation for the delay that is sufficient to rebut any such inference. The concept of detriment to good administration is relevant in cases where further administrative action has been taken in the belief that the decision in question has been acquiesced in.

[17] In the present case, four years elapsed before the decision made in 2008 was challenged. The petitioner states, however, that she believed that she retained indefinite leave to remain in the United Kingdom when she returned in 2008 and that, apart from the stamp on her passport, she was given no indication that that right had been in any way curtailed. That belief continued until she returned to the United Kingdom in May 2012. She had not understood the significance of the stamp put on her passport when she returned in 2008. If that is so, the petitioner would have no reason to believe that she required to invoke the power in paragraph 19. In that event the requirements of mora and taciturnity would not be satisfied, in that the petitioner had no reason for taking any action and could not be said to have failed to speak out in assertion of her rights. The respondent's plea would fail on this basis. For the respondent it was submitted that the petitioner's status in 2008 ought to have been obvious to her from the stamp on her passport, which clearly indicated that she had been admitted as a "visitor". Previously, she had indefinite leave to remain, which would have appeared in her passport. Counsel for the respondent further stated that it was not accepted that the pursuer had been in error as to her immigration status; it was impossible to know her state of mind.

[18] On this matter, I am not impressed by the suggestion that the petitioner ought to have appreciated her immigration status from the stamp put on her passport. The Immigration Judge who heard the petitioner's application to the First-tier Tribunal stated (at paragraph 51) that it was "disingenuous" for the respondent to state that the petitioner should have realized by recognition of one word in her passport that the leave that she had was not indefinite. I agree entirely with that observation. Nevertheless, the respondent does not accept that the petitioner was in error. That amounts to a suggestion that the petitioner may be lying when she claims that she did not appreciate the change in her immigration status in 2008. The petitioner was found to be a credible and reliable witness by the Immigration Judge who heard her earlier appeal. Nevertheless, in view of the respondent's attitude, I do not think that at this stage I can simply proceed on the basis that the petitioner is telling the truth. If it had been necessary, therefore, I would with some reluctance have ordered a proof on the questions of mora and taciturnity, and in particular whether the pursuer was in fact aware of her immigration status prior to 2012.

[19] In the event, however, I am of opinion that such a proof is not necessary. The reason is that I am satisfied that the requirement of acquiescence has not been established. In Singh, supra, Lord Nimmo Smith indicated that in some cases the mere passage of time can lead to an inference of acquiescence. In my opinion this is not such a case; the petitioner does not appear to have had any occasion to consider her immigration status between 2008 and 2012, and consequently her inaction cannot be construed as acquiescence in a limited right to remain in the United Kingdom. It is accordingly necessary to consider whether there has been any alteration of position on the part of the respondent or the immigration authorities. The respondent's pleadings do not on their face disclose any such actings. On that basis alone, I am of opinion that the plea of mora is irrelevant; in a case where actings on the faith of delay in taking action are relied on, they must in my view be set out in the pleadings.

[20] In argument, however, counsel for the respondent submitted that there had been prejudice resulting from the petitioner's delay. There was a general public interest that immigration policy should be certain, and it should not normally be possible to challenge a decision four years after it was made, and after its practical effect was spent. Furthermore, if such challenges were possible, resources would be needed to deal with them. Finally, in relation to the facts of the particular case, a specific resource issue arose for the respondent, in that expenses had been incurred through the consideration of the petitioner's immigration status and the proceedings before the First-tier Tribunal. In my opinion there is no merit in these arguments. It is no doubt true that there is a general public interest that immigration policy should be reasonably certain. Nevertheless, this must yield to the circumstances of any particular case; that is clear both from the existence of provisions such as paragraph 19 which permit exceptional leave to be given and from the existence of a power to grant leave outside the Immigration Rules, as discussed below. As to the resources that are required, that is simply a consequence of having a proper system of immigration control subject to the general rules of law that control administrative action. As to the expenditure in the present case, if immigration officials had given proper effect to the petitioner's circumstances at the outset, most of that expenditure might have been avoided. I accordingly hold that no undue prejudice has been shown to have occurred to the respondent or to the immigration authorities. On that basis the requirement of acquiescence is not satisfied, and the plea of mora, taciturnity and acquiescence must fail.

The decision of September 2012
[21] The petitioner further challenges the refusal in September 2012 by a Chief Immigration Officer acting on behalf of the respondent to exercise the discretion that the respondent has outside the Immigration Rules to give the petitioner indefinite leave to remain in the United Kingdom. That discretion is discussed in R (Munir) v Home Secretary, supra. That case was concerned with the constitutional position of immigration rules and statements of policy that apply outside those rules. As such it is not of direct relevance to the present case. Nevertheless, there is an interesting discussion of the legal basis for immigration rules (paragraphs [23]-[33]). The conclusion reached (paragraphs [26] and [33]) was that the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the Royal prerogative. The case then goes on to consider the status of policies made by the Secretary of State which go outside the immigration rules. It was accepted that the Secretary of State has power to admit immigrants to the United Kingdom in circumstances where that is not permitted by the rules. It was further accepted (paragraph [41]) that she has power to make policies about the circumstances in which she would or might relax the rigorous application of the immigration rules. As to the source of the power to make immigration decisions outside the rules, Lord Dyson said (at paragraph [44]):

"In my view, it is the [Immigration Act 1971] itself which is the source of the Secretary of State's power to grant leave to enter or remain outside the immigration rules. The Secretary of State is given a wide discretion under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain.... The language of these provisions... could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorize the Secretary of State to grant leave to enter or remain even where the leave could not be given under the immigration rules".

[22] It follows that the respondent has a discretion, derived from the Immigration Act 1971, to act outside the terms of the Immigration Rules. That discretion, however, is subject to the standard restrictions on the exercise of any discretion vested in the executive or any public administrative body. Where such a discretion exists, if a person who might benefit from the discretion requests that it should be exercised, proper consideration must be given to that request.

"The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application'.... I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all": British Oxygen Company Ltd v Minister of Technology, [1971] AC 610, at 625C per Lord Reid.

[23] In the present case, the letter from the petitioner's solicitors of 3 September 2012 made it clear that the petitioner was requesting an exercise of discretion in her favour to grant her indefinite leave to remain even if that were outside the Immigration Rules. The letter does not refer in terms to the concept of leave outside the rules, but the general request is in my opinion perfectly clear: the petitioner was seeking indefinite leave to remain in the United Kingdom. In the reply from Border Force North dated 10 September 2012, the writer accepted that discretion existed to grant the petitioner indefinite leave to remain as a returning resident despite the fact that she did not meet the "two-year" rule. The letter then states that there was no evidence that the officer who admitted her in 2008 did not consider such discretion, deciding not to exercise it; in addition, the fact that the discretion existed did not mean that it must be exercised. The position of the officer who admitted the petitioner in 2008 appears to me to be irrelevant; first, it is plainly impossible at this stage to know what passed through the officer's mind at the time; secondly, there is no indication that in 2008 the petitioner even thought of requesting an exercise of the discretion; and thirdly, in the following paragraph of the letter the writer points out that "officers at the Border cannot grant entry for periods longer than six months", which would render consideration of such a discretion pointless. The writer then states that a discretion does not have to be exercised, which is clearly true, but that does not absolve the immigration service from giving proper consideration to the request that it should be exercised.

[24] The letter of 10 September 2012 goes on to refer to transitional arrangements that deal with family members who rely on their rights under article 8 of the Human Rights Convention. Under those arrangements, a successful applicant should be granted entry for 30 months without restrictions on employment. The writer states that the petitioner did not presently qualify for indefinite leave to remain "for the reasons that I have given above" and for the reasons given when she was refused entry in May. It is not entirely clear from the terms of the letter what those reasons were; presumably this is a reference to the effect of article 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000. The letter continues:

"I therefore have no option but to grant entry in line with the transitional arrangements".

Those arrangements are explained in the respondent's answers. It is there stated that the petitioner was granted leave to enter for six months in accordance with paragraph 23A of the Immigration Rules, and that the respondent undertook that a further period of 24 months would be granted upon expiry of the initial six months. That represented the balance of the 30 month period of leave to remain to which the petitioner is entitled under section D-LTRP 1.1 of Appendix FM to the Immigration Rules.

[25] Nevertheless, while the petitioner was entitled to restricted leave in the foregoing manner, that does not detract from the power to grant leave outside the rules. The writer of the letter of 10 September 2012 states that he had "no option" but to grant restricted leave under the transitional arrangements. That is in my opinion not correct; given the request from the petitioner's solicitors, the Chief Immigration Officer should have gone on to consider whether this was an appropriate case for the grant of leave outside the rules. On that basis, I am of opinion that the petitioner is correct in submitting that in September 2012 the respondent refused to consider granting the petitioner leave outside the rules to remain in the United Kingdom, and that that is wrong as a matter of law, for the reasons discussed at paragraph [22] above.

[26] In her answers, the respondent states that, because the petitioner was in a position where she qualified under the provisions of the Immigration Rules, the question of leave outside the rules did not arise. Reference is made to a document issued by the respondent, the Immigration Directorates' Instructions, at Chapter 1, Section 14, dealing with leave outside the Immigration Rules. In that part of the document, it is indicated that, where a person does not qualify for leave under the Immigration Rules or the Humanitarian Protection or Discretionary Leave policies, any other leave to enter or remain must be granted under the category of leave outside the rules. It is stated that such instances are likely to be rare. At paragraph 1.2 of the relevant part of the Immigration Directorates' Instructions, it is stated that the only two circumstances where leave outside the rules may be relevant are where someone qualifies under one of the immigration policy concessions or "for reasons that are particularly compelling in circumstance". The last of those provisions, in particular, clearly accepts that the discretion to grant leave outside the rules depends ultimately on the particular circumstances of the case. "Particular compelling circumstances" are considered at paragraph 2.2, where it is stated that any such case should be considered on its individual merits and in line with any relevant policy at the time. That paragraph further indicates that it is not possible to give instances or examples of the type of case that might be defined as "particular compelling circumstances", but it is stated that grants of such leave outside the rules should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter or remain in the United Kingdom when there is no other available option. Those statements are fully in line with the general rule, stated in British Oxygen, that a request for the exercise of discretion must be properly considered.

[26] In the light of the foregoing documents, the respondent submits that the writer of the letter of 10 September 2012 considered the petitioner's circumstances under the Immigration Rules, concluded that she qualified for leave and granted leave accordingly. Once that had been done, it is submitted, the respondent had no grounds on which to consider granting leave outside the rules; the question of leave outside the rules simply did not arise. In my opinion this is not correct. The Immigration Directorates' Instructions make it quite clear that there exists a residual category of case where leave outside the rules may be granted. This category requires the existence of "particularly compelling circumstances". Nevertheless, in the present case the petitioner wishes to live with her husband and children, who are now aged 15 and 7, at their home in the United Kingdom. The family had previously lived in the United Kingdom and the petitioner was granted indefinite leave to remain. They moved to the United States and remained there for approximately 7 years; the petitioner has given reasons for the length of their stay. Now, however, they have been living in the United Kingdom for more than 5 years. In my opinion this might easily amount to "particularly compelling circumstances". On that basis the respondent ought to have considered the specific question of leave outside the rules.

[27] No doubt it might be said that under the transitional arrangements the petitioner can seek a series of extensions of her limited leave to remain in the United Kingdom, ultimately obtaining indefinite leave to remain after 5 years. That implies two possibilities. First, the grant of indefinite leave to remain may be automatic. In that case it is difficult to understand the point of the delay. Secondly, the grant of indefinite leave to remain may be withdrawn. In that case, however, the petitioner and her family will be subject to uncertainty as to whether they can remain together indefinitely. That appears to me to be hopelessly unsatisfactory. Consequently I do not consider that the existence of restricted leave to remain under the transitional arrangements in any way absolves the respondent of her responsibility for considering whether leave outside the rules should be granted.

Conclusion
[27] For the foregoing reasons I am of opinion that the petitioner's challenge to the respondent's decisions is well founded. I will accordingly grant decree of reduction of the decision taken in October 2008 to grant the petitioner leave to enter the United Kingdom for 6 months, an order for specific performance that the respondent should reconsider that decision and specifically consider granting the petitioner leave to enter the United Kingdom as a returning resident under paragraph 19 of the Immigration Rules, and an order for specific performance that the respondent should consider granting the petitioner indefinite leave to remain in the United Kingdom outside the Immigration Rules.