This case concerns the withdrawal by the SSHD of DP 5/96 – the ‘seven year child concession policy’ – under which families without leave, but with children who had been here for 7 years, were allowed to remain (save in exceptional circumstances).
On 09 December 2008 DP 5/96 was withdrawn immediately in order to ensure a more consistent approach cases involving children, and to prevent a benefit accruing in particular to overstayers or those unlawfully present in the UK. The SSHD’s published transitional arrangements stated that all cases involving families with dependant children with long residence would now be considered under the Immigration Rules and Article 8 ECHR.
It was claimed that the policy must continue to be applied to the applicants, who having evaded immigration control, made their applications for leave to remain after the policy had been withdrawn. Specifically it was argued that:
(1) withdrawal was unlawful for being incompatible with the underlying statutory scheme. The withdrawal was a statement of the practice to be applied by the SSHD, and therefore should have been laid before Parliament in accordance with statute;
(2) The withdrawal of the policy was unlawful because it was made without any prior notice, consultation or invitation to make representations;
(3) The withdrawal of the policy was irrational and perverse;
(4) it was rightly held below that it was conspicuously unfair and an abuse of power to withdraw the policy in a way that prevented those already in the UK who had built up at least seven years residence before withdrawal from its benefit;
(5) The present cases fall within the SSHD’s transitional arrangements;
(6) It is unlawful to deny leave to a family who would have qualified under the withdrawn policy as that would be incompatible with Article 8 ECHR.
Taking each point in turn:
(1) If the withdrawal of DP 5/96 amounted to a change in the Immigration Rules, it necessarily followed that DP 5/96 should have been laid before Parliament in accordance with statute. It was not. Therefore, DP 5/96 was unlawful, and its withdrawal was lawful since it brought to an end the application of an unlawful policy.
(2) The circumstances in which the courts will imply a duty to consult, where no expectation of consultation has been created by express or implied promise or practice, are extremely narrow: R (Bapio Action Ltd) v SSHD  EWCA Civ 1139. It was not suggested there was any such promise or practice here. As in Bapio, the lack of specificity as to who is to be consulted and the absence of any principled basis for imposing such a duty are incompatible with it. Here, the Court went further: ‘…it would be wholly unreasonable to impose a duty on the SSHD to consult those whose presence in this country is at best irregular, and at worst has been secured by deception, or those representing such persons.’
(3) None of the applicants knew of the policy before its withdrawal. They cannot therefore show that they relied on it, quite apart from the question whether their reliance would have given rise to a legitimate expectation. The SSHD was entitled to take the view that the policy was inimical to her immigration policy. A minister is entitled to review, to change and to revoke his policy whenever he considers it to be in the public interest to do so. Thus the SSHD’s decision to withdraw the policy was rational.
(4) Was there anything unfair in the refusal to apply the policy to those who had not sought to regularise their immigration status before the withdrawal of the policy? To put it otherwise, if he had an expectation that the policy would be applied to his family, was that expectation legitimate? Evasion or avoidance of immigration rules disqualifies that person from establishing any legitimate expectation.
(5) There is a perfectly rational, indeed sensible, distinction between cases in which the policy did not fall to be applied while it was in force and those that did. The suggestion that the transitional provisions are applicable to the applicants is inconsistent with the clear terms of those provisions: none of the applicants’ cases came for decision while the policy was revoked.
(6) The suggestion that anyone to whom the policy applied would necessarily have been entitled to remain in this country by virtue of Article 8 has only to be stated to be rejected.
Although the Court rejected each argument, the SSHD granted discretionary leave pursuant to Article 8ECHR.