In Granovski v Secretary of State for the Home Department [2015] EWHC 1478 (Admin) HHJ Coe QC sitting as a Deputy Judge of the High Court rejects the Home Office contention that the best interests of children and private and family life of the applicant and his family could only be considered in response to a specific paid human rights application:

Whether on the basis of her residual discretion or otherwise the Claimant is right to say that there is no category of immigration decision-making to which consideration of section 55 or the duty under section 6 Human Rights Act 1998 does not apply. In the circumstances of this case the Defendant has not considered section 55, Article 8 and proportionality at each relevant stage of her decision-making process. She specifically says that a consideration of any Article 8 claim is not required in the absence of a proper application and/or whilst the Claimant still has leave and in any event the Claimant ought to await the outcome of this application. Her consideration of section 55 factors is limited to the following words “this decision is not considered to raise any particular concerns with regards to the welfare of your children”.

This passage has important ramifications for Home Office decision making because it has become standard Home Office practice to refuse to consider human rights arguments and to give only the most cursory pro forma mention to the best interests of children where an applicant has not made a human rights application.

The case was that of a family who had entered the UK under the old Highly Skilled Migrant Programme but been denied settlement on the basis of excess absences from the UK. The case turned mainly on the interpretation of the Immigration Rules then in force which stated that an applicant for settlement needed to have resided continuously for four years. Policies then added that this meant that an applicant could not be absent from the UK for more than a certain number of days.

The judge accepted that the policies could not dictate interpretation of the Rules and, applying Alvi v SSHD [2004) UKSC 33 and Munir v SSHD [2012] UKSC 32, held that the proper interpretation of “reside” did not include an arbitrary limit on days present or absent from the UK. Importantly, though, the terms of the modern rules have changed and are far more explicit about periods of residence and absences from the UK. These arguments will not apply in cases to be determined under the modern rules.

The reason that the old rules determined the outcome of this case was that the judge accepted a point that the Upper Tribunal recently questioned in R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 191 (IAC) (Immigration applicants cannot rely on telephone calls with Home Office). This is that legitimate expectation is capable of carving out an exception to otherwise applicable Immigration Rules. The applicant and his family had entered on the basis of a promise of a scheme for residence and settlement and was entitled to rely on the original terms of the scheme rather than being forced to comply with rules that later shifted the goal posts. This was central to the earlier HSMP cases of HSMP Forum Limited v SSHD [2008] EWHC 664 (Admin) (“HSMP 1) and HSMP Forum UK Limited v SSHD [2009] EWHC 711 (Admin) (“HSMP 2”).

A great result for the applicant and his family, who were represented by Kingsley Napley Solicitors and my colleague at Garden Court Chambers, Amanda Weston.