Factual and Procedural Background
These cases arise from the withdrawal by the Secretary of State of the immigration policy DP 5/96, known as the seven year child concession policy. This policy allowed families without leave to remain in the country, but with children who had lived in the country for seven years or more, to remain except in exceptional circumstances. The applicants made their applications for leave to remain after the policy had been withdrawn.
The Home Secretary appeals against a decision quashing her refusal of the first applicant's request for leave to remain and directing her to reconsider the decision applying policy DP 5/96. The first applicant and family had lived in the UK for more than seven years before the policy was withdrawn.
The second applicant seeks permission to appeal against the dismissal of her judicial review application challenging the Secretary of State's refusal to grant leave to remain. She and her family had lived in the UK for less than seven years before the policy's withdrawal.
The third applicant appeals against the refusal of permission to apply for judicial review of the Secretary of State's decision not to grant leave to remain. He and his family had lived in the UK for less than seven years before the policy was withdrawn.
For convenience, the three individuals are collectively referred to as "the applicants".
Legal Issues Presented
- Whether the withdrawal of policy DP 5/96 was lawful, including whether it required parliamentary approval under section 3(2) of the Immigration Act 1971.
- Whether the applicants had any legitimate expectation that the policy would continue to apply to their cases.
- Whether the refusal to apply the policy to applicants who had been resident for seven years but applied after withdrawal was unfair or amounted to an abuse of power.
- Whether the Secretary of State was required to consult or give advance notice before withdrawing the policy.
- The application and interpretation of the transitional arrangements following the policy's withdrawal.
- The relevance and application of Article 8 of the European Convention on Human Rights (ECHR) in decisions regarding leave to remain and removal.
Arguments of the Parties
Appellant's Arguments (Secretary of State)
- The applicants had no substantive or procedural legitimate expectation that DP 5/96 would apply to their cases.
- There was no legal basis for the finding that the first applicant had an accrued right to the policy's application.
- The Secretary of State lawfully decided to withdraw the policy as it was contrary to the public interest and had been properly withdrawn except for transitional cases.
- The first applicant had evaded immigration control and entered unlawfully, undermining any claim to legitimate expectation.
Respondents' Arguments (Applicants)
- The withdrawal of the policy was unlawful as it was incompatible with the statutory scheme and should have been subject to parliamentary procedure under section 3(2) of the Immigration Act 1971.
- The withdrawal was unlawful because it was done without prior notice, consultation, or opportunity to make representations.
- The withdrawal was irrational and perverse.
- The refusal to apply the policy to those with seven years' residence prior to withdrawal was conspicuously unfair and amounted to an abuse of power.
- The applicants' cases fall within the Secretary of State's transitional arrangements.
- The court below erred in holding that the Secretary of State could deny leave to families who would have qualified under the withdrawn policy, as such refusal is incompatible with Article 8 ECHR.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| NF (Ghana) v Secretary of State [2008] EWHC 906 (Admin) |
Recognition that the policy revision created an express presumption against removal binding the Secretary of State. |
The court acknowledged that the policy imposed a presumption against removal, which was binding. |
| A v Secretary of State for the Home Department [2008] EWHC 2844 (Admin) |
DP 5/96 applied not only to removal decisions but also to granting indefinite leave to remain. |
The court held that the policy applied outside enforcement context, supporting the argument that ILR should be granted if the presumption against removal applied. |
| R. v Secretary of State for the Home Department ex p. Zequiri [2002] UKHL 3 |
Legitimate expectation does not require claimants to check intricate policy details; public authorities should bear consequences of their representations. |
Quoted to highlight that lack of claimant knowledge does not necessarily defeat legitimate expectation claims. |
| R (Bapio Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 |
Limits on implied duty to consult where no express or implied promise exists. |
Used to reject any duty to consult irregular migrants or their representatives before policy withdrawal. |
| Walumba Lumba 1 and 2 v Secretary of State for the Home Department; Kadian Mighty v Secretary of State for the Home Department [2011] UKSC 12 |
Applying an unpublished policy inconsistent with a published one is unlawful; legitimate expectation requires relevant representation. |
Supported the court’s view that legitimate expectation claims require prior knowledge and reliance on the policy. |
Court's Reasoning and Analysis
The court began by addressing whether the withdrawal of DP 5/96 was lawful. It held that if DP 5/96 constituted a rule under section 3(2) of the Immigration Act 1971, it was unlawful because it had not been laid before Parliament as required. Consequently, its withdrawal was lawful as it ended an unlawful policy.
The court rejected any duty on the Secretary of State to consult the applicants or give them advance notice of the withdrawal, particularly given their irregular immigration status and in the absence of any express or implied promise to consult.
Regarding legitimate expectation, the court held that none of the applicants had knowledge of the policy before its withdrawal and thus could not rely on it to establish such an expectation. The court emphasized that legitimate expectation requires a representation by the public authority and reliance by the claimant, neither of which was present.
The court found the policy to be contrary to the public interest as it incentivized unlawful immigration and the evasion of immigration control. The Secretary of State was entitled to withdraw the policy in the public interest.
The transitional arrangements were upheld as rational and sensible, applying only to cases where the policy had been applied before withdrawal. The applicants’ cases did not fall within these provisions as their applications were made after withdrawal.
The court rejected the lower court’s finding that the first applicant had an accrued right to the policy’s application, noting his unlawful entry by deception and failure to regularise status. This disqualified him from any legitimate expectation or right under the policy.
The court also rejected the argument that Article 8 ECHR mandated leave to remain under the policy, recognizing that enforcement of immigration restrictions may lawfully require removal even of children with long residence, depending on circumstances.
Holding and Implications
The court ALLOWED the Secretary of State's appeal against the decision quashing the refusal of leave to remain to the first applicant.
The court dismissed the appeal of the third applicant and refused permission to appeal to the second applicant.
The decision confirms that the withdrawal of DP 5/96 was lawful and that the policy does not apply to applications made after its withdrawal, even where families had resided for seven years before withdrawal. The transitional arrangements remain in force only for cases where the policy was applied before withdrawal.
No new precedent was established beyond affirming the Secretary of State’s discretion to withdraw immigration policies in the public interest and clarifying the limits of legitimate expectation in this context.