JR/1389/2014 
Neutral Citation Number: [2014] EWHC 3100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
The Courthouse 
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG 

Monday, 15th August 2014
 
B e f o r e: 

MR CMG OCKELTON 
(Sitting as a Deputy Judge of the High Court)
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Between: 
THE QUEEN ON THE APPLICATION OF DONG 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Miss Smith  (instructed by Ison Harrison Ltd) appeared on behalf of the Claimant
Mr Karim (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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J U D G M E N T
1.	THE DEPUTY JUDGE:  This is an application for judicial review of a decision by the Secretary of State on or before the 29th October 2013, granting discretionary leave to remain to the claimant and her two children.  It is challenged on the basis that the Secretary of State ought to have granted or ought to have properly considered granting indefinite leave to remain.  Permission was granted by Her Honour Judge Belcher on the basis simply that the grounds were arguable.
2.	The claimant is a national of Vietnam, who came to the United Kingdom in 2004 and claimed asylum.  The claim was refused, an appeal was dismissed and her appeal rights were exhausted by the end of July 2004.  By then she had met a man, I understand another Vietnamese national, and they had two children together, born in November 2006 and December 2007.  There is an anonymity order made in relation to this case and I shall refer to the elder child, a boy as "L", and if necessary, to his sister, the younger child as "A".
3.	For reasons which are not before me the children's father was deported following an unsuccessful appeal in the summer of 2011.
4.	The claimant then made a further human rights application which was refused and another appeal was dismissed.  In July 2013 the claimant made further representations.  By then she had become a follower of the Jehovah Witnesses.  Her children were attending meetings with her.  By then also to become apparent that L had considerable learning difficulties and the claim was made on the basis, firstly, that their religious practice might expose them to persecution or to treatment contrary to Article 3.  Secondly, that L's learning difficulties merited a grant of leave.
5.	On 6th September 2013 the Secretary of State appears to have communicated or attempted to communicate a number of decisions in response to that claim.  The asylum claim was rejected.  The claim based on a risk of ill treatment arising from the family's religious practises was rejected.  Any other claim under Article 3 was rejected but the Secretary of State decided, looking at all the material available to her, that it was not appropriate to remove this family or any of its members and therefore that there should be a grant of some form of leave, described in the letter and by the Secretary of State as "discretionary leave" (but I have never quite known on what basis the leave is called "discretionary").  Certainly it would have been leave outside any entitlement under the rules.
6.	The contents of the envelope sent to the claimant's solicitors on the 6th September are a matter on which the parties are at odds.  The claimants say that there was a covering letter and three letters of standard form inviting them to go to a post office to give their biometric details for a card to be produced in due course.  The Secretary of State says that there was also communicated at the same time a reasoned decision that there would be a grant of discretionary leave and that that grant would be for a period of 30 months.
7.	It is of some but probably little importance, because the claimants’ solicitor's response to the communication of the 6th September was to write to the Secretary of State, indicating their view that if leave was to be granted it should be granted as indefinite leave to remain and not for a limited period of discretionary leave.
8.	Certainly at the time the claimant's solicitors letter was written there had been no evidence of a grant of leave to the claimants; that is to say no card had been issued.
9.	The Secretary of State responded in a letter of 29th October, indicating that the grant would be of discretionary leave for 30 months.  	 The claimants followed that up by a pre‑action protocol letter, to which the Secretary of State responded on 6th January 2014.  That letter gives further reasons for the decision to grant discretionary leave and it is relied upon by Mr Karim who defends the Secretary of State's decision.
10.	On behalf of the claimants Miss Smith raises a number of issues but in principle they amount to a criticism of the Secretary of State's decision‑making process in this case.  It is beyond dispute that the decisions made in this case were immigration decisions in relation to a family which included two children.  They were decisions which were therefore bound to affect the children, L and A.
11.	The Secretary of State had available to her information about L's learning disability, including the full statement of educational needs and some of the evidence submitted to those who formulated that statement.  In other words, there was material from experienced educational psychologists as well as those who interact daily with L.
12.	Section 55 of the Borders Citizenship and Immigration Act 2009 requires the Secretary of State to treat the best interests of a child as a primary consideration in making any decision relating to removal or enforcement action or any other immigration decision affecting a child. It is therefore clear and on behalf of the Secretary of State Mr Karim does not attempt to deny that in this case the obligation of the Secretary of State to give privacy to the best interests of the children was in play.
13.	One looks therefore to see the way in which those interests were assessed and the way in which that assessment reflected the decision that was actually made.  Despite my best endeavours with Mr Karim's assistance, I have been wholly unable to see the carrying out of the duty under section 55 in the decisions made by the Secretary of State in this case.  That is so even if one takes fully into account the contents of the letter of 6th January, which postdated all the relevant decisions and was avowedly written in an attempt to defend them.
14.	The first letter indicates, as I have said, that asylum and Article 3 claims are rejected.  The second letter of 29th October 2013 indicates that discretionary leave of 30 months will be given.  There is in that letter an analysis of the Secretary of State's conclusion that the family were not to be required to leave the United Kingdom and that therefore discretionary leave would be granted.  There is a statement that indefinite leave to remain is not normally granted under such circumstances.  The letter contains the following passage:  
"There is of course exceptional circumstances to this, as you have highlighted in your letter of 10th December 2013.  In cases involving children, decisions makers must regard the best interests of the child as a primary consideration when deciding the duration of leave granted.  While the expectation is that in most cases a standard 30 months period of DL will be appropriate, there may be cases where evidence is provided showing that a longer period of leave or ILR is required in order to meet the best interests of the child under consideration.  Considering the further submissions and all the evidence in the round it was not accepted that your client sufficiently demonstrated the basis for a grant of ILR or leave longer than 30 months DL.  In all cases the onus is upon the claimant or their representative to provide evidence as to why it is in the best interest of the child to be granted a period of leave that is longer than the standard period of DL.  Furthermore full consideration was given to your client's submissions under Article 3."  
The letter goes on to reject again the Article 3 claim.  So far as the letter of 6th January is concerned, the first four paragraphs of the nine paragraphs of the letter summarise the claimant's solicitor’s submissions.  The next two, paragraphs 5 and 6, defend the reference to Article 3 and by implication the absence of references to Article 8 and section 55 in the original decision.  Paragraphs 7 and 8 read as follows: 
"7. The Home Office would like to clarify that your client's child [L] was granted DLR in the United Kingdom on the basis of a number of factors including his age, his length of residency in the United Kingdom, his ties to life in the United Kingdom, his inability to speak a native language of Vietnam and the fact that he has already been in receipt of assistance in the United Kingdom for his learning disability.  It was considered that on a cumulative basis that discretion should be exercised in favour of [L] and that he should be granted DLR in the United Kingdom.  
8. Whilst consideration was given to your client's child's learning disability along with other individual factors, it was not accepted that [L's] individual circumstances were of such a compelling and significant nature that [L] should be afforded ILR in the United Kingdom.  Accordingly the Home Office refutes in its entirety your claim that consideration was only taken in making a decision to grant DLR and not ILR to [L] on the basis of his disability. 
8. The Home Office does not accept that the judgments in the cases of SM and Anr and ZH (Tanzania), which you have referred to in your letter before claim, are relevance to your client and her dependent circumstances.  The judgment in the case of SM and Anr did not state that in each instance the Home Office must grant ILR not DLR to a child when exercising discretion in their favour following consideration of section 55 of the BCIA 2009.  Boldly that such consideration should be given by the Home Office when deciding a grant of leave would be appropriate on the basis of the child's best interest under section 55 of BCIA 2009.  For all the reasons given above the Home Office does not accept that it would be appropriate to grant LILR in the United Kingdom and therefore his parents and siblings of ILR in line.  The Home Office maintains that it is correct to grant L and his family DLR in the United Kingdom. 
9.  Therefore in conclusion the Home Office remains of the opinion that our decision of the 6th December 2013, which was confirmed in our letter of 29th October 2013 to grant DLR and not ILR to [L]and his family should be maintained."
15.	Those paragraphs indicate to me clearly that the decision was taken on the basis that the appropriate grant in normal circumstances was a grant of DLR of the normal period, that is to say 30 months.  The decision maker then looked to see whether there were what were described as "circumstances of such a compelling or significant nature" that ILR was appropriate.
16.	The denial of the relevance of ZH (Tanzania) in paragraph 8 is, as Mr Smith has suggested, rather troubling.  But of course the statement of law in paragraph 8, that there is no requirement in all cases where a child is involved to grant indefinite leave to remain is correct.  
17.	None of this affects the duty which applies to the Secretary of State in all cases to consider the best interests of the child as a primary matter.  There is no indication at all in any of the documents to which I have referred by Mr Karim or Miss Smith to indicate that any assessment has ever been made by the Secretary of State of what the best interests of L might be.  I do not say of course that having assessed those interests the Secretary of State is obliged to make a decision in accordance with them.  But the decision‑making process imposed on the Secretary of State by section 55 is to assess and consider those interests so that the best interests of the child are affected by any guidance or normality of the decision‑making process can feed into the decision which is actually made.
18.	For those reasons it is clear to me that the procedure adopted by the Secretary of State in this case was defective and that as a matter of general administrative law the decision was unlawful.
19.	The question is then whether this is an appropriate case for the grant of any remedy.  Remedies in judicial review are always a matter of discretion and I raised at the beginning of her submissions with Miss Smith whether in view of the material available to the Secretary of State, there was any basis for saying that if the process had been followed through lawfully the decision would have been any different. Mr Karim's position is, as he put it, that even if there were procedural difficulties with the decision‑making process itself, there was no evidence that the Secretary of State would not have been entitled to reach the same decision if the right process had been followed.
20.	Miss Smith suggests a different approach.  She points out that in the decision of Holman J in R (on the application of) SM and Ors v Secretary of State [2013] EWCA HC1144 (Admin), the judge quashed all the decisions for procedural error without looking at what the material before the Secretary of State might have led to if the procedural faults had not been there.  That was however an unusual case in which the Secretary of State had avowedly followed a process of guidance which prevented decision makers from stepping outside the guidance in order to reflect the interests of children involved.  The judge decided that the guidance was unlawful and indeed it is not the guidance which applied to the decision maker in this case.  One can readily understand that in the circumstances of SM the judge was not likely to reach the view that the decisions actually made were open to the decision maker in those circumstances.
21.	Here the position is rather different.  However, Miss Smith submits, in my view correctly, that the question is not whether the court would reach the view that it is likely that the same decision would be made, but whether if the correct procedure had been followed the decision might have been different.  That appears to be the appropriate test to apply and bearing in mind the extensive material that there is in relation to the claimant's son, L, and bearing in mind also the need to look at it with an approach which is child-centred without being uncritical, I think it would be wrong to say that the claimant has not shown that the decision might be different if the proper procedure of giving primacy to the best interests of the child as properly assessed on the evidence were to be followed.
22.	For those reasons I shall grant judicial review.  I will quash ‑‑ perhaps I will hear counsel on the form of the order because if I quash the decision you will be left without any leave.  But I will grant judicial review as sought.
23.	MISS SMITH:  By way of protecting the grant of discretionary leave the Secretary of State has recognised that removal of this family would breach their Article 8 rights and that it is appropriate to grant at least 30 months' leave.  A decision quashing the refusal to grant indefinite leave to remain would leave that, those other parts intact, whilst allowing the Secretary of State to consider whether a period of longer than 30 months is appropriate.
24.	MR KARIM:  Sir, given the decision you have reached on the basis that the process has not been followed, it must be right that the only order you can make is to quash the decision.
25.	THE DEPUTY JUDGE:  I am afraid I am not going to do that.  You have agreed in principle that leave should be granted.    Might the appropriate order be a direction to consider again whether indefinite leave to remain should be granted?  Not to amend the claim form.  That would produce the right result, would it not, leaving the grant of 30 months intact, if all else fails?  This is not a case where the family should be at risk of losing the leave they have.
26.	MR KARIM:  Can I suggest an alternative?  The type of wording which would be the Secretary of State reconsiders the appropriate duration of leave to be granted.
27.	MISS SMITH:  Just in keeping with the respondent's policy, a direction, a consideration of whether a period of longer than 30 months is in keeping with the respondent's obligation in relation to their own policy because what they say is 30 months is the norm and there may be circumstances, looking at the best interests of the child, where a period of longer than 30 months ought to be granted.  So that direction would be in keeping with the respondent's policy.
28.	MR KARIM:  I am keen to prevent the Secretary of State being bound by certain directions which ... obviously the decision making is hers and properly vested on her by Parliament.  If the decision is to be quashed then she has to reconsider the appropriate duration of leave to be granted but I think the most appropriate way to do it, in my respectful submission, if you want to protect the position of 30 months is that she reconsiders that duration.  Otherwise, it is having the cake and eating it.  
29.	THE DEPUTY JUDGE:  I think the claimants are entitled to have the cake of the 30 months.  
30.	MR KARIM:  I should probably say in the cases of SM, Holman J simply quashed the decision.  He did not‑‑ 
31.	THE DEPUTY JUDGE:  But that was different because of the wholly unlawfully way in which he thought the decisions had been reached in that case; in other words, that was a sort of institutional unlawfulness because everyone was affected by a policy which could not stand.
32.	Firstly, are there any procedural hazards if I make a mandatory order of some form? 
33.	MR KARIM:  Sir, I would say that is inappropriate in a case like this.
34.	THE DEPUTY JUDGE:  I appreciate you say it is inappropriate but are there any procedural hazards if I do it? 
35.	MR KARIM:  It depends on what you are asking the Secretary of State to do.
36.	THE DEPUTY JUDGE:  In particular, does it fall outside the jurisdiction of the Tribunal?  Does there need to be an amendment?  Can the amendment be made now?  
37.	MR KARIM:  Forgive me, in what respects? 
38.	THE DEPUTY JUDGE:  Because Miss Smith had not sought a mandatory order, she sought quashing.
39.	MISS SMITH:  I think there is a mandatory order for the Secretary of State to reconsider.
40.	THE DEPUTY JUDGE:  Is there a draft order somewhere? 
41.	MISS SMITH:  There is not, no.  It is set out I think in the application and also in the....
42.	THE DEPUTY JUDGE:  Unfortunately it does not say which one.
43.	MISS SMITH:  A15 is the judicial review.
44.	THE DEPUTY JUDGE:  Decision of 29th October in relation to the grant of leave order to... 
45.	MR KARIM:  Sir, I think paragraph 28 sets it out very clearly: quash the decision and ask the Secretary of State to reconsider the decision in light of the appropriate legal framework.
46.	THE DEPUTY JUDGE:  Quash the decision of 29th October but not the decision to grant leave, which is 6th September.
47.	MR KARIM:  Yes. It follows that the Secretary of State will have to reconsider the decision in light of the appropriate best interest criteria.
48.	THE DEPUTY JUDGE:  In that case do you need to withdraw your assertion that the 6th September envelope contained everything?  Because I do not want someone to say:  well it is all very well withdrawing the decision or quashing the decision of 29th October when in fact that still leaves extant the final decision to grant 30 months discretionary leave which was taken on 6th December.
49.	MR KARIM:  Yes. I do not have any formal instructions to do so.  I wonder whether a recital to the order can make it clear that the decision that has been quashed is in relation to the grant of leave and its duration.
50.	THE DEPUTY JUDGE:  No.  The decision that has been quashed is the decision in relation to its duration.
51.	MR KARIM:  Forgive me.  But the grant of the leave has not been quashed.
52.	 THE DEPUTY JUDGE:  Yes.  Miss Smith it is going to be for you to draft and see what you can do.  My intention is this.  The decision refusing to go outside the normal rule of 30 months DLR is the one which I regard as unlawful and therefore needing the appropriate remedy.  If that decision can be found wholly in the letter of the 29th October, so be it.  If not, then it may be necessary to express rather more elaborately the ambit of the Tribunal's direction.  The direction will also need specifically to advert to the need to take account of the best interests of both of the children as a primary (though of course not determinative) consideration.
53.	The next thing that arises is this. Is it actually worth making that decision on the basis October 2012 material or ought not the claimant having succeeded to date have a short period of time to put in further material to influence that decision if she chooses to do so?  I am perfectly aware that the Secretary of State is entitled to say:  if you want another decision again, you can write another letter, we will act on what we have.  It seems rather a waste of time.
54.	MR KARIM:  It is a matter for the claimant really whether they wish ‑‑ 
55.	THE DEPUTY JUDGE:  It is not really because unless I specifically allow the claimant to put in extra material, you might go away and have a decision overnight looking at the material you already have; which might run the risk of being out of date. 
56.	MR KARIM:  Yes. But to a certain degree that is a high degree of micro management which the supervising of the restriction of this court does not allow, with the greatest of respect, in my respectful submission.  I can double (inaudible) that.  
57.	THE DEPUTY JUDGE:  I will direct that the claimant has 28 days from today to put in further material which may inform the Secretary of State's decision.  Because as you say certainty is necessary so we will not have any longer time.  Thank you very much.  If you were going to say: could we have 6 weeks or 3 months.
58.	MISS SMITH:  The only order I would seek in addition to that is our costs.
59.	THE DEPUTY JUDGE:  Yes. You cannot really resist that? 
60.	MR KARIM:  No, I do not.
61.	THE DEPUTY JUDGE:  Are you legally aided? 
62.	MISS SMITH:  We are, yes.
63.	THE DEPUTY JUDGE:  You can put in an appropriate order in the order please including your costs to be subject to detailed assessment.
64.	MR KARIM:  One final thing to prevent any further confusion.  In respect of your comments that the further decision needs to take into account both the best interests of the children, is that by way of a mandatory order? 
65.	THE DEPUTY JUDGE:  The best interests of both the children.  It is a reminder.  It is a reminder. I specifically said that of course those best interests are not determinative.  They have a primary role.  As you will have appreciated, I do take the view the point of giving them a primary role so the decision maker has in mind, whilst making all the other decisions that this is a view that I have reached what would be best for these children.  It may not be going to do it but that is what would be best.  All right.  Good.  Get something drafted and see if you can get Mr Karim to agree it and then send it.  
66.	For the avoidance of doubt, permission to appeal is refused.