Ortiz, R (on the application of) v Secretary of State for the Home Department

J U D G M E N T

MR JUSTICE BLAKE: This is an application for judicial review of decisions that were finally made in May 2012, granting the claimant and his dependants, his wife and three children, discretionary leave to remain for three years.

The first claimant is a citizen of Ecuador, as indeed are all the members of his family. He entered the United Kingdom at some point in 2000 on a forged Spanish passport. In about November 2000, he was encountered by the immigration service, served with a notice of liability to removal as an illegal entrant, and then claimed asylum. Whilst this asylum claim was under consideration, the second claimant arrived in the United Kingdom. She is the wife of the first claimant. She also claimed asylum. The first claimant's asylum claim was refused in January 2003, and an appeal dismissed in May 2003. The second claimant's asylum application was refused and the appeal dismissed all in the course of 2004.

The third claimant is the elder daughter of the first two claimants. She was born on 31 August 2004. She is now ten years old. The fourth claimant is the younger daughter of the first two claimants, and she was born on 29 January 2006, so she is now nine. Like her sister, she has spent all her life in the United Kingdom. For completeness, a further child has been born to the couple.

The first claimant, after the refusal of the asylum claim, applied to be included in an application being made by his brother, who was in the United Kingdom, as a family member. The brother was given leave to remain indefinitely in July 2005. However, the first claimant was considered not to qualify for consideration as a dependant of his brother as the Secretary of State was not satisfied that the first claimant was living in the same household. His independent application for ILR under the then family policy was refused in March 2006 and a judicial review of that refusal was dismissed shortly thereafter.

Taking the position as of April 2006, at that stage the first two claimants were failed asylum seekers who had exhausted their appeal rights, were liable for removal to Ecuador as illegal entrants with no leave to remain, and their two daughters were not British citizens and accordingly were susceptible to removal with their parents. The Home Office records also suggest that during this period, in about September 2005, the first claimant had failed to report regularly as he was required to do so and was treated as an absconder.

No further