Successful Judicial Review of refusal to grant indefinite leave to remain to vulnerable child

Thursday 24 May 2018

Following a successful application for judicial review, the Upper Tribunal has quashed a decision of the Home Office to refuse to grant indefinite leave to remain (ILR) to the applicant, a bisexual Jamaican teenager and victim of child sexual exploitation. Garden Court's Helen Foot represented the applicant, instructed by Sophie Freeman of Coram Children's Legal Centre.

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In R (VRB) v Secretary of State for the Home Department JR/3746/2017, VRB was granted limited leave to remain following an Article 8 appeal, which was conceded by the Secretary of State after extensive new evidence was provided about his situation.

The Secretary of State agreed that VRB met the requirements of paragraph 276ADE(1)(iv) of the Immigration Rules and indicated that a grant of 30 months leave to remain would be made. His solicitors wrote to the Home Office to request ILR, relying on expert evidence as to why ILR was necessary to promote his mental health and meet his best interests as a child.

The request was refused on the grounds that VRB’s application for ILR was not accompanied by the relevant application fee and that he did not meet the requirements for ILR under the Immigration Rules. The Upper Tribunal found that the refusal was in breach of the Secretary of State's duties under section 55 of the Borders, Citizens and Immigration Act 2009 and unlawfully fettered her discretion to grant ILR outside the Rules.

The Secretary of State argued unsuccessfully, in reliance on R (Patel) v Secretary of State for the Home Department IJR [2015] UKUT 00561 (IAC), that she had no duty to even consider granting ILR, since VRB had not submitted a 'valid' or 'formal' application for ILR.

The Upper Tribunal confirmed, following R (Alladin and Wadhwa) v Secretary of State for the Home Department [2014] EWCA Civ 1334, that all that is required to engage the Secretary of State's duty to consider ILR outside the Rules is a clear request supported by material demonstrating why ILR would be appropriate in the circumstances of the particular case.

The final judgment, which is not yet reported, is available here: R (VRB) v Secretary of State for the Home Department JR/3746/2017

Helen Foot is a member of the Garden Court Chambers Immigration Team.

 

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