22 December 2010

Application no. 5470/09
by P.T.B. and Others 
against the United Kingdom
lodged on 28 January 2009

STATEMENT OF FACTS
THE FACTS
The first applicant, Ms PTB, is a Jamaican national who was born in 1966. The second applicant, S, and the third applicant, T, who are also Jamaican nationals, are the first applicant’s great-nieces (her sister’s granddaughters through two daughters). S and T are therefore cousins because their mothers are sisters. They were born in 1993 and 1999 respectively and live in London. They are all represented before the Court by Ms G. Kashano of Fisher Meredith Solicitors, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The background to the first applicant’s immigration history
The first applicant arrived in the United Kingdom on 11 March 2000 and was granted leave to remain as a visitor for six months. She was subsequently granted leave to remain in the United Kingdom as a student, which was validly extended until 30 October 2002.
On 21 October 2002, she married a British citizen. On 8 November 2002, she made an application for leave to remain in the United Kingdom as the spouse of a British citizen which was refused by the Secretary of State on 12 July 2003. The first applicant lodged an invalid appeal against that decision which was therefore dismissed. She has since separated from her husband.
2. The second applicant’s family background and arrival in the United Kingdom
In June 2001, when she was 7 years of age, S arrived in the United Kingdom on a visitor’s visa to visit her grandmother, the first applicant’s sister. Her leave to remain in the United Kingdom has never subsequently been extended.
S’s mother is a drug addict living in Jamaica with no permanent address. S claims that she has not had any contact with her mother since her arrival in the United Kingdom. Similarly, S claims that she has not had any contact with her father who is thought to be living in the United States of America.
Upon S’s arrival in the United Kingdom, she moved in with her cousin, T and her aunt, T’s mother.
On 6 April 2010, S gave birth to a son. The nationality and immigration status of her son and his father are unknown.
3. The third applicant’s family background and arrival in the United Kingdom
On 23 August 1999, at the age of six months, T arrived in the United Kingdom on her mother’s passport. She was granted six months’ leave to enter the United Kingdom. Her leave to remain in the United Kingdom has never been extended.
In November 2001, T’s mother was arrested and detained on charges relating to the supply of Class A drugs, of which she was later convicted. In June 2003, T’s mother was deported to Jamaica and abandoned T in the United Kingdom.
T’s father was killed in a gang war in Jamaica in 2009.
4. The immigration proceedings relating to all three applicants
The first applicant has lived with T ever since the first applicant’s arrival in the United Kingdom in March 2000. She has lived with S ever since S’s arrival in the United Kingdom in June 2001. Since the arrest and detention of T’s mother in November 2001, the first applicant has had sole responsibility for the care of both S and T.
On 4 January 2005, the first applicant made an application for indefinite leave to remain in the United Kingdom as the carer of S and T.
On 12 July 2007, the first applicant made a further application for indefinite leave to remain in the United Kingdom under the “7 year policy” (see the relevant domestic law and practice set out below) with S and T as her dependents.
On 6 February 2008, the Secretary of State refused that application. In relation to her claim under Article 8, it was not accepted, inter alia, that the first applicant’s removal to Jamaica would interfere with any family life in the United Kingdom because S and T could accompany her to Jamaica. Furthermore, it was considered that any interference with her family or private life caused by her removal would be proportionate to the legitimate need to maintain effective immigration control in light of, inter alia, her poor immigration history; the fact that she had remained in the United Kingdom unlawfully; and the fact that she had been working without authority. Finally, it was noted that the first applicant had not demonstrated that she was the legal guardian of S and T by producing evidence to show that their natural parents had relinquished all responsibility for them. In the circumstances, as the first applicant was not the parent of a child who had accrued 7 years or more continuous residence in the United Kingdom, she could not benefit from the 7 year policy.
The applicants appealed relying on Article 8 of the Convention and arguing that the Secretary of State had failed to adequately consider the significant hardship that S and T would face if returned to Jamaica; the terms of the 7 year policy; the strength of their ties in the United Kingdom; and the fact that they had lost contact with their parents.
On 29 April 2008, the Asylum and Immigration Tribunal (“the AIT”) dismissed their appeal. The Immigration Judge considered that the first applicant had continued to live in the United Kingdom in the full knowledge that none of the applicants had any permission to remain and did not accept that their length of residence was such as to militate against their removal. She further considered that all of the applicants would be able to adapt to life in Jamaica. In particular, even though S, who was 14 years of age at the time, had spent some of her formative years in the United Kingdom she had some experience of life in Jamaica and was young enough to adjust upon return. Whilst T had spent 9 years in the United Kingdom having arrived at 6 months of age, she was at an age where she could reasonably be expected to readily adjust to life in Jamaica. It was noted that the applicants had no other close family ties in the United Kingdom as they had lost contact with the first applicant’s sister, S and T’s grandmother. Furthermore, there was little evidence of any relationships or friendships that the applicants had established in the United Kingdom and there was nothing to suggest that such relationships were exceptional or could not be broken. The Immigration Judge did not accept that the applicants had no contact with S’s mother, and considered that both S and T had a parent in Jamaica who had never legally transferred parental rights to the first applicant.
The Immigration Judge did not accept that the 7 year policy applied to the applicants because, inter alia, S had not accrued seven years continuous residence in the United Kingdom and had no parent in the United Kingdom facing removal; and whilst T had lived continuously in the United Kingdom since a young age for over 7 years, the first applicant was not her parent within the meaning of the policy. To that end it was accepted that the first applicant had family life with S and T, but found that the mere fact that a child had been left in the care of a third party did not make that carer the parent of the child, particularly when the parent of the child was alive and there had been no formal legal process to transfer the parental responsibility for the child. Therefore, the Immigration Judge found that the Secretary of State’s refusal of their application under the 7 year policy was in accordance with the law.
In relation to Article 8, the Immigration Judge found that their removal from the United Kingdom was necessary and proportionate to the legitimate aim of maintaining an effective immigration policy. First, she found that there would be no interference with the applicants’ family life if they were returned to Jamaica, because S and T would be removed with the first applicant, with whom they were said to have established a family life in the United Kingdom. They could therefore continue such family life in Jamaica, where she had found that they had close family ties. It was not accepted that there would be a disproportionate interference with the first applicant’s private life given that she had spent most of her life in Jamaica and had only had a short period of valid leave to remain in the United Kingdom.
In relation to the private lives of S and T, the Immigration Judge found that they were at a young age and likely to be readily able to adjust to life in their country of birth. She concluded that:
“The overwhelming majority of the time both children have resided in the UK has been without any leave to remain. I consider that the adults involved in their lives simply conspired to bring them to the UK to remain here to live their lives in the UK without any immediate concern as to the legality of their stay.”
On 13 May 2008, a Senior Immigration Judge refused their application for reconsideration of that decision, erroneously commenting that the first applicant was the mother of S and T. It was considered that the Immigration Judge had reached findings of fact which she was entitled to reach on the evidence and had given clear reasons for her findings.
On 29 July 2008, the High Court refused their application for reconsideration. The court found that even if the Immigration Judge had misdirected herself as to whether or not T came within the 7 year policy, there was no arguable misdirection of law because:
“i. [T] is being cared for by her aunt and not her mother and both aunt and sister were prima facie liable to removal under the policy;
ii. [T]’s mother is in Jamaica and removal of all claimants would promote family unity rather than divide them;
iii. [the 7 year policy] is not conclusive against removal and the mother’s criminality and the above, would well entitle the IJ to conclude that there was no breach of the policy.”

B.  Relevant domestic law and practice
1. Asylum and human rights claims
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the Asylum and Immigration Tribunal.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

2. The DP 5/96 Policy (“The 7 year policy”)
“DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE
Introduction
The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence.
Policy
Whilst it is important that each case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents’ residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents’ country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception.
3. When notifying a decision to either concede or proceed with enforcement action it is important that full reasons be given making clear that each case is considered on its individual merits.”

The policy was originally published in March 1996 and was written in terms of children aged 10 years of age or over or those children who had accumulated 10 years or more continuous residence in the United Kingdom. In 1999, it was re-issued in identical terms save that “7” was substituted for “10” following a policy modification announced by the then Under-Secretary for the Home Department in a Written Answer dated 24 February 2009 to a Parliamentary question, which set out as follows:
“For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under the age of 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits.”
The Home Office subsequently released an undated policy modification statement which read as follows:
“Deportation in Cases where there are children with long residence: Policy Modification announced by the Under-Secretary for the Home Department Mr O’Brien on 24 February 1999.
Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom.
For the purpose of proceedings with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 of over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence.
However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case.”
The policy was officially withdrawn on the 9 December 2008 by a Ministerial statement which stated that the original purpose and need for the policy had been overtaken by changes to the Immigration Rules and consideration of applications under Article 8 of the Convention.
In NF (Ghana) v. the Secretary of State for the Home Department [2008] EWCA Civ 906, the Court of Appeal considered the relevance of the 7 year policy upon Article 8 of the Convention. Lord Justice Rix concluded:
“39. For the future, it seems to us inevitable that tribunals considering the impact of the Secretary of State’s policy in relation to the passing of seven years residence on the part of a child of the family should:
(1)	start from the position (the presumption) that it is only in exceptional cases that indefinite leave to remain will not be given, but
(2)	go on to consider the extent to which any of or a balancing of all the factors mentioned in the 1999 policy modification statement makes the case an exceptional one.”
COMPLAINTS
First, the applicants complain under Article 8 of the Convention that their removal to Jamaica would be a disproportionate interference with their family and private lives in the United Kingdom.
Second, they complain under Article 14 when taken with Article 8 of the Convention, that the 7 year policy unlawfully discriminated against children who were cared for by people other than their parents. They claim that the policy, which protected the private lives of children living with their parents but not the private lives of those who were unable to live with their parents, was clearly unlawful.
QUESTIONS TO THE PARTIES

1.  Would the applicants’ removal to Jamaica violate their rights to family and/or private life under Article 8 of the Convention?

In particular:
(i) would the applicants’ removal to Jamaica be in accordance with the law having regard to the DP 5/96 Policy (“the 7 year policy”) which was in force at the relevant time?
(ii) would the applicants’ removal to Jamaica constitute a proportionate interference with their family and/or private life?

2.  Did the difference of treatment between the second and third applicants, as children living with their great aunt, and other children who lived with their parents and would thus benefit from the 7 year policy, constitute a violation of Article 14 read in conjunction with Article 8?