There are numerous pathways to securing immigration status in the United Kingdom. Each individual’s unique circumstances often leads them to selecting specific visa routes, and at times they may even possess multiple legal foundations for achieving Indefinite Leave to Remain (ILR). Dependants in particular can sometimes face a harder route to secure immigration status.

 

Due to the intricate and subtle legal complexities within the UK immigration system, it’s important to note that the Home Office may consider these different ILR grounds differently. The Home Office might also make mistakes, such as failing to recognise a migrant’s dependants. If the Home Office gets it wrong when applying the immigration rules, it can significantly impact individuals seeking ILR under different grounds.

 

The case we’re discussing today, R (on the application of Shantay Seneke Blake) v Secretary of State for the Home Department (SSHD), shows the importance of accurately interpreting and applying immigration laws. It also demonstrates the importance of knowing what we can do to protect our rights if the Home Office made a mistake in applying the law.

 

an immigration banner from Lisa's Law saying 'Immigration is life, we make it easier for you' as representing 10 years long residence is a significant part of a migrant's life and a crucial factor in an Indefinite Leave to Remain application - 10-year lawful residence.

 

Background of R v SSHD

 

The applicant, a Jamaican national, arrived in the UK with her mother (M) and brother as visitors in 2000 when she was just three years old, and her brother was less than a year old. They overstayed upon the expiry of their leave.

 

In 2006, M was convicted of drug offenses and sentenced to two years’ imprisonment, leading to deportation proceedings against her commencing in 2007. The First-tier Tribunal (FTT) later granted M humanitarian protection under Article 3 of the European Convention on Human Rights. In 2013, M was granted Leave to Remain (LTR) as a refugee, issued a UK Residence Permit (UKRP). The applicant and her brother received UKRPs which wre valid until 2018.

 

In 2018 and 2021, the applicant applied for Indefinite Leave to Remain (ILR), which required LTR in a specific category. This emphasises her eligibility as a dependant on her mother’s asylum claim and eligibility under Immigration Rules Paragraph 339R. However, both applications were rejected by the Secretary of State because the LTR had been granted under Article 8 of the Convention, and she wasn’t considered to have LTR in a qualifying capacity.

 

The SSHD stated that as the applicant has never been granted permission to stay as a refugee or person granted humanitarian protection, the application under paragraph STP 1.4 of the Settlement Protection Annex, which requires an applicant for ILR in that capacity to have leave to remain in a specific category, was invalid and should be rejected.

 

Application for judicial review

 

The applicant applied for judicial review, challenging the lawfulness of the Secretary of State’s decision to reject her application for settlement as invalid. The applicant contends that she was her mother’s dependant and ought to have been granted leave as such. Finally, the applicant contended that the SSHD erred in failing to grant her leave as the dependant of a refugee and that every subsequent consideration of her immigration status, including the decision under challenge, was tainted by that error.

 

While the SSHD acknowledges that the applicant’s mother was granted leave to remain as a refugee in 2013, it disputes that the applicant was her dependant at that time. Moreover, the SSHD asserts that the applicant did not have leave that entitled her to ILR under the Immigration Rules.

 

Court Decision on R v SSHD

 

The Upper Tribunal allowed the applicant’s judicial review application, challenging the Home Office’s decision to reject her application for settlement. They mainly assessed whether the Secretary of State’s continued refusal to treat the applicant consistently with the 2013 decision of the FTT (as someone who had been granted or should have been granted five years’ LTR as the dependant of a person granted leave as a refugee) had been unlawful.

 

The tribunal considered not only the claims made by the applicant and her mother over the last fifteen years or more, but also the departmental records concerning those claims.

 

The tribunal’s decision in relation to the claimant’s dependants

 

1. The applicant and her brother had not been expressly named as dependants. However, there had been no suggestion anywhere in the record of the FTT proceedings that the applicant and her brother were to be separated from M.

 

2. The senior caseworker who had approved the refusal decision failed to explain the basis to grant leave to the applicant and her brother only pursuant to art 8 of the Convention. In the absence of any explanation, the decision appeared to be unlawful, in that it had not been in accordance with the Immigration Rules and the respondent’s published policy.

 

3. While it had been correct that the Secretary of State had not been obliged to treat the applicant as if having leave under para 339Q of the Immigration Rules, that had not been a complete answer to the applicant’s complaint. It had ill-behoved the Secretary of State to rely on the applicant’s delay and her failure to challenge the 2013.

 

The Tribunal also clarified why it was incorrect to consider the case as one where the applicant passively accepted an erroneous LTR grant in 2013.

 

  • there had been no notice in 2013 that she received anything other than refugee-dependant leave;
  • the applicant was a child at that time and could not properly be criticised for not recognizing the wrong decision;
  • finally, the first indication of a different ground of leave other than as a dependant of a refugee had been in 2018 when her ILR was denied.

 

Error made by the Home Secretary

 

The 2013 error led to the refusal of the 2018 ILR application under Immigration Rules and the invalidation of the 2021 application. But the Secretary of State erred in failing to consider, in the exercise of the discretion, whether to grant the applicant ILR outside the Immigration Rules so as to correct the error it made in 2013. The outcome for the applicant would likely have been different had the Secretary of State properly considered her submissions in this regard. Given the 2013 error, the applicant had a valid case for leave outside the Immigration Rules.

 

The tribunal finally held, among other things, that the applicant had been included as a dependant on M’s application for asylum and that she had been treated as such by the Secretary of State. She should have been granted LTR under para 339Q of the Immigration Rules as a result, and it had been erroneous to grant her LTR pursuant to art 8 of the Convention only.

 

Our comments

 

This case deals with the years of litigation that resulted from the Immigration Department’s mistaken belief that the applicant was not a family member of a refugee. Fortunately, the story has a good result, although it comes 10 years late.

 

According to this case, we can see that the Home Office also makes mistakes. The SSHD’s persistence in these errors has caused huge losses to the parties and resulted in years of litigation, so it is important for the SSHD to fully consider the actual situation of the parties when exercising its discretion.

 

Moreover, the appellant’s victory in this case is a good example for other immigrant family members in similar situations. A real cohabitation and the age of civil behaviour should also be considered when assess the identity of dependants of immigrants.

 

Finally, this case highlights the need for clarity in the application of immigration rules to ensure that the rights of individuals seeking residence in the UK are protected.

 

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