subject: DP5/96 Policy _ Families with children _ Article 8 _ Indefinite leave to remain [print this page] DP5/96 Policy _ Families with children _ Article 8 _ Indefinite leave to remain
Abbassi & Ors, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2894 (Admin) (12 November 2010)
Policy DP5/96 created a presumption against the removal of immigrants where their children had been continuously resident in the UK for 7 years. The policy had been withdrawn by the time Mr Rahman, Ms Adams and Mrs Abbassi and their families applied for indefinite leave to remain (ILR). They had, however, been in the UK for 7 years prior to the policy's withdrawal. It was irrational for the secretary of state (SSHD) to withdraw Policy DP5/96 in a manner that would prevent the families benefitting from the policy, when they had already accumulated 7 years' residence, prior to the policy being withdrawn.
In enforcement cases where DP5/96 was under consideration it would remain applicable. The general presumption that ILR would be granted for families with children of long residence, was unaffected (NF (Ghana) v Secretary of State[2008] EWHC 906 Admin)).
Further, on the approach of R (A) v SSHD [2008] EWHC Admin 2844 the policy extended beyond cases in which enforcement action was being considered. It would be irrational to distinguish between persons who had the necessary period of residence but who were not the subject of enforcement proceedings, and those with the necessary residence qualification, who were. Had the Rahman family, who completed their 7 years in the UK 3 months prior to the withdrawal of the policy, had their claim considered before the withdrawal of DP5/96 they would have qualified for ILR. They had an accrued' right, not merely the right not to be removed.
The fact that Mr Rahman and Ms Adams were unaware they had an accrued right would not negate that right. To deny the Rahman family the benefit of DP5/96 when they had accumulated the necessary 7 years residence prior to the withdrawal of the policy, was so conspicuously unfair as to amount to an abuse of power. In Ms Adams case, the position was even clearer. Enforcement proceedings had begun so the Adams family was entitled to ILR, unless the individual merits of the case required otherwise.
In contrast, Mrs Abbassi and her children completed their 7 years about 9 months after the withdrawal of the policy. As such they had not accrued the same right. The decision-making process for removal was distinct from that for ILR (Mirza v SSHD [2010] EWHC 2002). Thus, it was not unfair or irrational that the defendant had not had applied Paragraph 395C of the Immigration Rules (which outlines procedures for section 10 removals under the Immigration and Asylum Act 1999) because she had not yet begun to decide whether to order removal (R (on the application of Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin)).
Whilst very weighty reasons' were needed to justify separating a child from the community in which s/he had lived for most of his/her life (LD Zimbabwe [2010] UKUT 278 (IAC)), it was not the only consideration. The parents' failure to regularise their position in the UK was significant, and provided a rational reason to de-prioritise the best interests of the child.
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