Mutlu v Secretary of State for the Home Department [2007] EWCA Civ 1517

Case No C5/2007/1660[2007] EWCA Civ 1517
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IM/000783/2006]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 17 th December 2007
Before
LORD JUSTICE LAWS
Between
OSMAL MUTLUAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms C Hulse (instructed by Stuart Karatas Solicitors) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal against a decision of the Asylum and Immigration Tribunal promulgated on 23 May 2007 by which Immigration Judge Lewis on a reconsideration dismissed the applicant’s appeal against the decision of the Secretary of State (set out in a decision letter of 15 March 2005) to refuse the applicant indefinite leave to remain, which had been sought pursuant to the Secretary of State’s long stay policy contained in paragraphs 276(A) to (B) of the Immigration Rules (House of Commons Paper 395). Inherent in that decision was a further refusal, namely, not to revoke a deportation order earlier made in relation to the applicant. Permission to appeal to this court was refused on consideration of the papers by Keene LJ on 8 October 2007.[2]The applicant is a Turkish national born on 18 January 1967. The primary facts giving rise to these proceedings are crisply summarised by Immigration

Judge Lewis at paragraphs three to five of his determination as follows:

“3. The Appellant arrived in the UK on 20 February 1990 as a visitor. His leave was extended to 31 December 1990. Thereafter he remained an overstayer. On 19 September 1994 he applied for leave to remain as a spouse. His application was refused by letter dated 10 March 1998. Subsequently the Respondent contended that he served the Appellant with a notice of intention to deport on 28 April 1998. 4. On 16 November 1999 the Appellant made a second application to remain as a spouse based on a second and subsequent marriage. The Respondent refused the application by letter dated 19 August 2000. Enclosed with his Refusal Letter the Respondent served on the Appellant a deportation order signed on 19 June 2000. 5. In February 2004 the Appellant married his third and current wife in a religious but not in a civil ceremony. On 12 February 2004 the Appellant applied to the Respondent for leave to remain under paragraphs 276A-D on the basis that he had been in the UK in excess of fourteen years. The Respondent refused the application by letter dated 15 March 2005 on the basis that the clock had stopped as of April 1998 (date of intention to deport notice) or August 2000 (date of service of deportation order). A child was born to the Appellant and his current wife on 24 January 2007.”
[3]The applicant’s appeal against the decision of 15 March 2005 came before Immigration Judge Forster QC. His decision was promulgated on 24 February 2006. He dismissed the appeal.[4]Before seeing how the issues in the case develop, it is convenient to describe the relevant immigration rule which contains the long stay policy. In the decision letter the Secretary of State summarised it like this:
“On 1 April 2003 Paragraphs 276A-D of the Immigration Rules were introduced to reflect the previous Ministerial statement concerning the question of ‘normally’ regularising the immigration status of those who have resided in the United Kingdom for 10 years relates to those persons who can demonstrate 10 years continuous lawful residence i.e. without overstaying their permitted leave to enter or remain. Paragraphs 276A-D…also applies to those who have resided in the United Kingdom for 14 years or more either lawfully or unlawfully. In the absence of any countervailing factors such as a criminal record or a deliberate attempt to evade or circumvent immigration control those who can demonstrate that they meet the criteria outlined within Paragraph 276B would normally be granted indefinite leave to enter or remain.”
[5]I will return shortly to paragraph 276B. Now the applicant’s presence here has been unlawful since he became an overstayer on 31 December 1990. He therefore had to show 14 years’ residence. As Immigration Judge Lewis noted, the Secretary of State in his decision letter concluded that for the purpose of time running under the rule, “the clock had stopped”, either by the applicant’s being served with a notice of intention to deport him in April 1998 or by service of the deportation order in August 2000. Rule 276B(i)(b) of the Immigration Rules states that any period of residence which has accrued after the service of removal directions under various provisions of Schedule 2 to the Immigration Act 1971, or Section 10 of the Immigration and Asylum Act 1999, or a notice of intention to deport shall not count towards the length of residence of the person in question. So those are the matters which according to the rule itself would, as it were, stop the clock. The first immigration judge, Immigration Judge Forster, found it was not proved that (first) the letter of 10 March 1998 refusing leave to remain on grounds of marriage and (secondly) the notice of intention to deport had been served on the applicant (see paragraph 33.1 of his determination). The deportation order itself was served. At any rate, it came to the applicant’s notice because on 1 September he purported to launch an appeal against it. The first immigration judge said this:
“34. Where a Deportation Order has come to the attention of an Appellant he can have no legitimate expectation of remaining within the United Kingdom and in such circumstances he cannot rely upon time spent in the United Kingdom after the Deportation Order has come to his notice. In any event the same is capable of being a countervailing factor to be considered when exercising the discretion.”
[6]The first immigration judge found (paragraph 37.1) that the applicant’s first marriage had effectively been a sham marriage (I must return to that); that the applicant’s removal would interfere with his family and private life but would not be disproportionate to the legitimate aim of immigration control (paragraph 39); and lastly, considering whether the deportation order should be revoked, that it had been appropriate to make the deportation order in the circumstances of the case. A reconsideration was sought on grounds which were extremely prolix. A major complaint about the first immigration judge’s decision was his refusal to revoke the deportation order, not least since if the applicant had not been served with the notice of intention to deport he had lost his only chance of appeal in relation to the deportation process. A statutory appeal lies against the notice of intention, but there is no right of appeal against the deportation order itself, notwithstanding the applicant’s attempt to launch one. On 13 March 2006 a senior immigration judge ordered reconsideration, and at a first stage reconsideration on 13 December 2006 the Asylum and Immigration Tribunal held that service of deportation, order which is not appealable, is not service of a notice listed in rule 276B(i)(b) as stopping the clock for the purposes of the long stay policy.[7]Moreover, at the time when notice of intention to deport was supposed to have been served on the applicant, the Home Office in fact operated a policy that they would not deport people until they could be located and served personally. As was noted at both the first and second stage recommendation, that policy was considered by Sullivan J in R v SSHD ex parte Popiata & Chew (CO-4948-98). I (with respect) will not read out the passage cited by Immigration Judge Lewis. At the first stage the immigration judge found there was no clear evidence that the notice of intention to deport had come to the notice of the appellant. On 3 March 2007 the AIT made this[8]That then set the scene for the second stage reconsideration, to which I now turn. The applicant sought and was granted leave to amend the grounds of appeal so as to seek revocation of the deportation order. That together with what had been ordered in January meant that the immigration judge at the second stage had three issues to deal with: one, the applicant’s claim under the long stay policy (rule 276); two, Article 8; three, revocation of the deportation order. Immigration Judge Lewis set out the applicant’s evidence in some detail (paragraphs 17 to 25). I note in particular these facts. The applicant’s wife, like him, is from Turkey. She is disabled, unhappily, lacking a left hand and lower arm. There is an infant daughter born on 24 January 2007. The applicant has worked as a tailor’s presser “fairly consistently” from his arrival to the United Kingdom at least until 2001 or 2002. Of course he had no business working here because he had no right to stay here and do so. He and his wife have some relations in the United Kingdom, and many, including the applicant’s mother and two siblings and his wife’s three sisters and a brother, in Turkey. The immigration judge found (paragraph 27) that the applicant’s application to stay as the spouse of his first wife was fraudulent. He turned to the first issue, the applicant’s claim under the rule. Rule 276B(ii) is set out by Immigration Judge Lewis at paragraph 28. It lists a number of factors relevant to the decision whether to grant leave to stay or leave to remain under the long stay policy. They include such matters (as one would expect), as strength of connections in the United Kingdom, personal history, domestic circumstances, and so forth.[9]The immigration judge considered the evidence in the light of all the factors. He did so at paragraphs 29 to 34. He considered that the fact that the applicant’s long residence had been without leave was material to the public interest, though he acknowledged because of the terms of the policy itself that it did not bar his being granted leave. Immigration Judge Lewis concluded (paragraph 34) that the applicant’s personal circumstances, so far as they assisted him, were outweighed by the factors tending to show he should not be granted leave. Miss Hulse’s complaint about this part of the case is really, with respect to her, to the effect that the immigration judge should have given more weight to the factors favouring the applicant. There is nothing in that, given that this court sits only to deal with appeals on points of law. She had a specific submission that the immigration judge was not entitled to find that the first application to stay as a spouse was fraudulent because there was no legally sufficient evidence to support it. I disagree with that. It seems to me the immigration judge was entitled to go on the material which he describes, for example, at paragraph 18 of his decision.[10]So far as Article 8 is concerned, the immigration judge directed himself correctly as to the law. I note for example the citations from Huang v SSHD [2007] UKHL 11 and Mahmood v SSHD [2001] Imm AR 229. The immigration judge concluded as follows: “43. The Appellant has been in the UK since the age of 23. However that has been because of long-term overstaying and refused applications, the first of which was based upon false information. He grew up in Turkey, from which his wife also comes. There is no evidence of any insuperable obstacle or undue hardship to their returning there. 44. Weighing all of these considerations, I find that, whilst an interference with the Appellant’s right to respect for his family and private life, his return to Turkey would be necessary and proportionate to the legitimate aim of preserving effective immigration control. I am therefore required to dismiss his Article 8 appeal, which I do.[11]Miss Hulse says that the immigration judge has failed properly and lawfully to strike the proportionality balance. Essentially, she submits that the immigration judge did not arrive at an accurate assessment as to the extent to which the applicant’s family and private life would be interfered with if he were returned, and given that failure, the judgment on proportionality is necessarily infected. She referred in particular to the absence of any assessment of the effects of the applicant’s wife’s disability or the depth to which Article 8 would be interfered with if he were returned to Turkey. Those matters are, I think, matters of fact. I detect no legal error in the judgment of the immigration judge relating to Article 8.[12]That leaves the last issue, which concerns the deportation order. It was the last issue dealt with by Immigration Judge Lewis. He set out rules 390 and 391, which are concerned with the circumstances in which it would be right to revoke a deportation order. He noted that revocation of a deportation order depends upon a change of circumstances having taken place. Here the third marriage (a stable and successful marriage) was entered into after the deportation order had been made, and indeed there is, as I have said, a young child. The immigration judge considered the case of ES (Ukraine) [2006] UKAIT 00056, which was relied on by Miss Hulse before him and has been relied on by her before me this morning. The case emphasises the need for the most exceptional circumstances to be shown before revocation was warranted. The immigration judge held that such circumstances are not shown here, and declined to revoke the order. Miss Hulse submits that the immigration judge has really failed properly to apply the tribunal decision of ES. She says there are striking similarities between that case and this, and if ES is right, really there is no proper basis for refusing to revoke the deportation order in the present case.[13]ES was also a case in which there was a very considerable gap of time between the institution of the deportation process (to use that phrase) and the activation of the deportation order or its purported activation. As in this case, many years passed, during which the appellant in that case (as I understand it) was under a shadow of the deportation order. She was educated meantime. She took a degree at Oxford, and part of her case (though not in truth accepted as such by the tribunal) was that that was a commendable achievement which went very powerfully in her favour when it came to the application of the immigration rules. Towards the end of their decision the tribunal, presided over by Mr Ockelton the Deputy President, after setting out certain transitional provisions arising under the Immigration and Asylum Act 1999, say this:
“38. This makes it clear that the powers for making the deportation order (under section 5 of the 1971 Act) continued to be available to the respondent as a result of the decision he made before 2nd October 2000. The deportation order itself is, therefore, clearly lawful.”
[14]I observe at that point, Miss Hulse would submit that in fact was a point of contrast with the present case here. She would submit that the deportation order was not lawful because only a notice had ever been served. The tribunal continued:
“39. The question then is whether, if it were revoked, the respondent would have any power to issue removal directions under section 10 of the 1999 Act against the appellant. Paragraph 1(2)(a) of the Schedule to the Commencement Order would suggest not, and paragraph 2(3) of the same Order would suggest that deportation would continue to be available in her case. That interpretation would be based on the assumption that the historic decision to make a deportation order forever singled out an individual as continuing to be subject to the deportation provisions of the 1971 Act before their amendment. 40. We do not think that can be right. If it were, a person who had once been the subject of a pre-2000 decision to make a deportation order against him as an overstayer would forever be subject to the pre-2000 law, even if the decision had been withdrawn, set aside on appeal, not proceeded with, or even resulted in a deportation order that had been enforced, and, years later, revoked. The true position must be that these transitional provisions are intended to be transitional and not permanent: they enable the continuation of any deportation process begun before 2000 but are not intended to determine the immigration law applicable to people who happen to have been the subject of continuing process on 2 October 2000 when fresh immigration decisions are taken after that date. 41. We have therefore reached the view that, if the deportation order were revoked, it would be open to the Secretary of State to give directions for the appellant’s removal as an overstayer. 42. For that reason we have concluded that the exceptional circumstances and history of this case are such that the proper decision would have been to revoke, rather than maintaining, the deportation order in January 2005. We shall therefore allow this appeal on the grounds of the discretion to revoke the deportation order should have been exercised differently. 43. We emphasise that we do not suggest that the appellant has, or ought to have, any right to remain here. It may well be that there are ample grounds for removing her. Further, it should be emphasised that our decision does not give the appellant leave to remain and we should not be taken to imply that we should have leave. What we do say is that in her case removing her by way of deportation is not appropriate. For that reason only, having found the immigration judge materially erred in law, we substitute a determination allowing this appeal.”
[15]As I understand her, Miss Hulse submits that really those considerations apply with equal force in the present case. It seems to me there may be something in this. At any rate, it may be said that the immigration judge has not really confronted those final paragraphs of the tribunal’s decision in ES. He has simply sought to distinguish ES on its factual merits. They may therefore, apart from anything else, for that reason be an arguable mistake in the decision. Bearing in mind on the findings so far, this is a case in which notice of intention to deport was never served or never got to the applicant, thus depriving him of any right of appeal in relation to the deportation process. Given the passage of time which followed after the deportation order has been made in, I think, August 2000 -- it seems to me there may be something in the claim that the immigration judge has not properly confronted the basis for the argument that the deportation order should have been revoked. In those circumstances I propose to grant permission to appeal on the point relating to the deportation order only. Miss Hulse will of course explain to her client that does not mean he has leave to remain. It does not mean that the court thinks he should have leave to remain. She will no doubt draw his attention to what was said by the tribunal in ES in the closing paragraph of their determination.[16]However, as a matter of law I think she is entitled to argue that a different decision might have been reached as regards the deportation order, and for all those reasons and only to the extent specified I will grant permission to appeal.

order

“Thus, the second-stage reconsideration must proceed on the basis of our finding that, as a matter of fact and law, the appellant has spent 14 years in the United Kingdom all of which is computable for the purposes of paragraphs 276A-D. The Tribunal must then proceed to consider current circumstances in the context of paragraph 276B (ii) as well as Article 8 bearing in mind the Tribunal’s guidance as to the nature of a reconsideration hearing as set out in AH [2006] UKAIT 38.” Order: Application granted