TE v Secretary of State for the Home Department [2011] EWCA Civ 811

[2011] EWCA Civ 811

Case No C5/2010/2260

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

SENIOR IMMIGRATION JUDGE HANSON

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14 th July 2011

Before

LORD JUSTICE STANLEY BURNTON

LORD JUSTICE PATTEN

LADY JUSTICE BLACK

Between

TEAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Shazia Khan (instructed by Miles Hutchinson & Lithgow) for Appellant

Charles Bourne (instructed by the Treasury Solicitor) for Respondent

Hearing Hearing date : 28 June 2011

Judgment

Introduction

[1]In these proceedings, the Appellant challenges the application by Senior Immigration Judge Hanson of paragraph 395C of the Immigration Rules in her case. In summary, she contends that the judge applied a presumption that she should be refused further leave to remain, whereas Rule 395C includes no such presumption.

The facts

[2]The Appellant is a citizen of Eritrea. She arrived in this country in January 2003 and applied for asylum. Her application was refused by the Secretary of State. There ensued a depressingly familiar and protracted series of procedures. She appealed against the Secretary of State’s decision. The Adjudicator dismissed her appeal, but found that the Appellant was a minor. As a result, in February 2004 she was granted discretionary leave to remain until 30 March 2005, the eve of her 18th birthday.

[3]On 7 March 2005 the Appellant made an application for further leave to remain. It was not determined by the Secretary of State until 3 July 2007. It was refused. She appealed. Her appeal was heard by an Immigration Judge who dismissed it on human rights grounds and under the Immigration Rules. The Appellant sought reconsideration. Leave was granted, but at the reconsideration hearing the Senior Immigration Judge found there had been no material error of law in the determination.

[4]In July 2008, the Appellant applied for permission to appeal to the Court of Appeal on the ground that the Secretary of State, the Immigration Judge and the Senior Immigration Judge had failed to address paragraph 395C. Permission was granted by the Court of Appeal and her appeal heard in January 2009. Judgment was given by the Court of Appeal on 11 March 2009, under neutral citation

[2009] EWCA Civ 174

, reported at [2009] INLR 558. The Court held that paragraph 395C should have been considered, and adjourned the appeal part heard on terms that the Appellant would make representations under that paragraph, and the Secretary of State would then decide whether or not to grant her leave to remain; if the Secretary of State refused to do so, the appeal would be allowed to the extent of remitting the case to the Tribunal for reconsideration of the question whether she should be granted leave to remain pursuant to paragraph 395C on grounds other than those already considered by the Tribunal.

[5]The Appellant duly made representations to the Secretary of State. The Secretary of State refused leave to remain. The Appellant appealed to the Tribunal. Her appeal was heard by Senior Immigration Judge Hanson. He dismissed her appeal. Permission to appeal was granted by Sullivan LJ on one ground only, namely that “Senior Immigration Judge Hanson erred in law [in] his assessment of the Appellant’s case under paragraph 395C by applying the wrong legal test”. As stated above, it is Senior Immigration Judge Hanson’s determination that is the subject of the present appeal.

Paragraph 395C

[6]Paragraph 395C is, of course, one of the Immigration Rules made by the Secretary of State under section 3 of the Immigration Act 1971:(1) Except as otherwise provided by or under this Act, where a person is not [a British citizen]— (a) he shall not enter the United Kingdom unless given leave to do so in accordance with [the provisions of, or made under,] this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; …

(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). …. (a) he shall not enter the United Kingdom unless given leave to do so in accordance with [the provisions of, or made under,] this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

[7]Section 10 of the Immigration and Asylum Act 1999, so far as relevant, provides:

“10 Removal of certain persons unlawfully in the United Kingdom (1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if— (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; [(b) he uses deception in seeking (whether successfully or not) leave to remain;] or (ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee); (c) directions . . . have been given for the removal, under this section, of a person . . . to whose family he belongs.” (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; [(b) he uses deception in seeking (whether successfully or not) leave to remain;] or (ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee); (c) directions . . . have been given for the removal, under this section, of a person . . . to whose family he belongs.”

[8]Paragraphs 395A, 395B, 395C and 395D of the Immigration Rules are as follows: “Administrative Removal 395A. A person is now liable to administrative removal in certain circumstances in which he would, prior to 2 October 2000, have been liable to deportation. 395B. These circumstances are set out in section 10 of the 1999 Act. They are:(i) failure to comply with a condition attached to his leave to enter or remain, or remaining beyond the time limited by the leave;

(ii) where the person has obtained leave to remain by deception; and

(iii) where the person is the spouse civil partner, or child under 18 of someone in respect of whom directions for removal have been given under section 10. 395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including: (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf. In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account. 395D. No one shall be removed under section 10 if his removal would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or under the Human Rights Convention. (i) failure to comply with a condition attached to his leave to enter or remain, or remaining beyond the time limited by the leave; (ii) where the person has obtained leave to remain by deception; and (iii) where the person is the spouse civil partner, or child under 18 of someone in respect of whom directions for removal have been given under section 10. (i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person's behalf.

Senior Immigration Judge Hanson’s determination

[9]The Senior Immigration Judge set out the guidance given by the Secretary of State for case workers, at Chapter 53 of the Enforcement Instructions and Guidance, headed “Instructions on applying paragraphs 364 to 368 and 395C of the Immigration rules”. The Instructions begin:

“Before a decision to remove is taken on a case, the case-owner/operational staff must consider all known relevant factors (both positive and negative). It is important to cover the compassionate factors in the transcription of the interview and to record them and the fact that you have discussed them with the UKBA officer authorising removal, on the local file minute or IS126E and UKBA internal database records (CID). Removal should not be considered in any case which qualifies for leave under the Immigration Rules, existing policies or where it would be inappropriate to do so under this policy. Relevant factors are set out in paragraph 395C of the immigration rules and in the guidance below, but this list is not exhaustive. Additional factors to consider in relation to deportation / administrative removal of an individual as well as family members and civil partners are set out in paragraphs 365-367 of the immigration rules.”

[10]The instructions proceed to enlarge on the matters listed in paragraph 395C. I do not think they assist the determination of this appeal.

[11]The judge then considered each of the matters listed in paragraph 395C in relation to the Appellant. In summary:(1) Age: she was born in March 1987 and had been 22 at the date of her statement. She had arrived in this country at the age of 15, and therefore spent most of her formative years here.

(2) Length of residence in the UK: at the date of her statement, she had been here for 6 years.

(3) Strength of connections with the United Kingdom and personal history: she had a close network of friends in the UK, had an impressive work record, and was socially active.

(4) Domestic circumstances: she lived alone, was self sufficient without recourse to the benefits system.

(5) Previous criminal record: she had not committed any criminal offences.

(6) Compassionate circumstances: she had no family in Eritrea; she had family in Ethiopia, but did not know where they were; she had become “very westernised” and accustomed to life in this country.

(7) Representations received on her behalf: these had been considered by the Secretary of State and were considered by the Senior Immigration Judge.

[12]Having summarised these matters and the Secretary of State’s response to them, the Senior Immigration

Judge said:

“52. In considering matters under paragraphs 395C the Tribunal is in some respects carry out a balancing exercise to ascertain whether the facts are such that the appellant should be permitted to remain. The Court of Appeals finding that the retention in the United Kingdom of a person of value was relevant to the legitimate aim of immigration controls, and was of an issue to which weight should be given to the extent that a person of great value to the community could reduce the weight be given to such immigration control in the balancing exercise, was a very relevant factor. The Court of Appeal did however state that the reduction in the weight given to the immigration control argument did not amount to a reward for good behaviour. 53. The fact that this appellant has not committed criminal offences and has acted within the law should be seen as recognition that she has behaved within the norms one would expect within a civilised and democratic society and not something that should be deemed so exceptional so as to justify an increase in weight being placed upon the same. It is those whose behaviour is not in accordance with social norms that should be punished whereas those who behave in the way in which this appellant did should be given due recognition but not necessarily rewards for acting as the United Kingdom is entitled to expect them to act. 54. I accept that the contribution the appellant is has made it a relevant consideration as it is also part of the strength of her connection to the United Kingdom and her domestic circumstances, but I do not consider that this is a factor that in isolation allows the appellant to succeed. 55. The appellant has no right to study in the United Kingdom and is not on a course at this time that assists her in her claim. 56. Paragraph 395C sets out the factors that need to be considered as a whole rather than individual and so it is necessary for me to consider whether, in light of the findings above the appellant is able to succeed. It is my finding that the appellant cannot. I make this finding for although the appellant must be commended for the efforts that she has made it has not been shown, when one considers the appellant’s circumstances in the round, that they are such as to enable me to find that this is a case in which the appellant should be granted leave to remain in the United Kingdom on the basis of this rule. She has no right to remain in the United Kingdom and her circumstances are not such that she should be permitted to do so under paragraph 395C.”

[13]Accordingly, he dismissed the appeal.

The contentions of the parties

[14]The Appellant’s contention, ably and attractively advanced by Ms Khan, is that “in considering [the Appellant’s] circumstances under paragraph 395C there is no requirement for a “balancing exercise” to be conducted. The Appellant either meets the requirements of the rule or she does not. The rule itself simply requires that “regard will be had to all the relevant factors known to the Secretary of State. … There is no presumption in favour of removal in paragraph 395C”. It was submitted that the Senior Immigration Judge erred in treating the issue under paragraph 395C as if it were a claim under

Article 8 of the European Convention on Human Rights

, in which Article 8 rights are weighed against the objective of effective immigration control. On this basis, it is submitted that the Senior Immigration Judge erred in law, and his determination should therefore be set aside. She submitted that the Court should take account of all the factors found in favour of the Appellant and find that she met the requirements of paragraph 395C.

[15]Mr Bourne, in his concise and clear submissions on behalf of the Secretary of State, contends that the Senior Immigration Judge made no legal error. Persons relying on paragraph 395C are liable to be removed, and the role of the Secretary of State and of the Tribunal is to decide whether other relevant considerations, and in particular those listed in that paragraph, lead to the conclusion that despite that liability, they should not be removed. That inevitably involves a balancing exercise.

Discussion

[16]In my judgment, the fundamental error in the Appellant’s case is her description of the specific matters listed in paragraph 395C as “requirements” that can be “met”. They are not requirements in this sense: they are matters that are relevant to the making of the decision whether or not to remove the applicant. In the language of paragraph 395C, they are factors to which regard must be had. By way of simple example, length of residence in the UK cannot be a “requirement”, since no duration of the length of residence required to meet the “requirement” is specified. Exactly the same applies to the other matters listed. Even (vi), previous criminal record, can be no more than a factor to be assessed. Obviously, a serious offence will weigh (a word I use advisedly) against the applicant; but a trivial offence, particularly if it is one of strict liability, will weigh less heavily. The fact that the factors listed in paragraph 395C are not exclusive, which implies that other factors may weigh both for and against the applicant, is a further demonstration that the listed factors are not requirements to be met or not.

[17]Paragraph 395C does not expressly indicate what is to be done by the decision maker once he has the relevant factors before him. This is, as Ms Khan pointed out, in contrast to other provisions of the Immigration Rules, such as paragraph 364, which states that “while each case will be considered on its merits, where a person is liable to deportation, the presumption will be that the public interest requires deportation”. However, the contrast between paragraph 364 and paragraph 395C still leaves the application of the factors in the latter to be inferred. It therefore does not necessarily follow from the reference to a presumption in paragraph 364 and its absence in 395C that there is none to be applied in relation to the latter.

[18]In my judgment, the function of paragraph 395C is to be inferred from its context. It is one of the rules “as to the practice to be followed in the administration” of immigration control. Other provisions of the Immigration Rules confer rights to enter or to remain or to extensions of leave, or presumptions as to the grant of those rights. By way of example, I refer to paragraph 245ZV, which lays down requirements for entry clearance for Tier 4 (General) Students and states that if those requirements are met the application will be granted and otherwise it will be refused. Parenthetically, such paragraphs of the Immigration Rules indicate that the Secretary of State is able to describe something as a requirement when it is such.

[19]As Lady Justice Black pointed out during the course of argument, paragraph 395C is only relevant if the applicant has no entitlement to remain in this country under any other provision of the Immigration Rules, or indeed of any applicable legislation. Its immediate context is paragraphs 395A and 395B, and section 10 of the 1999 Act. It applies to persons who are liable to administrative removal. Absent any reason why they should not be removed, they may be. Paragraph 395C is a helpful list of factors to be considered by the decision maker when deciding whether, although the applicant is liable to be removed under section 10, he should not be. That involves considering all relevant factors, whether listed or not, and deciding whether, notwithstanding that the applicant has no right to be here, he should not be removed. If he is not to be removed, normally it will be appropriate to grant leave to remain. This process is not inaptly described as weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain.

[20]This is the process that the Senior Immigration Judge carried out. In my judgment, the first sentence of paragraph 52 of his determination contains no legal error. He said that “Tribunal is in some respects [carrying] out a balancing exercise to ascertain whether the facts are such that the appellant should be permitted to remain”, and so it is.

[21]This may mean that there is little difference, if any, between the decision under Article 8 and that under paragraph 395C. I do not find that surprising, or a reason to reach a different conclusion. All of the factors mentioned in paragraph 395C are relevant to a claim under Article 8, and in many, if not most, cases, the same decision should be made under both provisions. Perhaps the principal difference is that Article 8 has a general application, whereas paragraph 395C applies, at least expressly, only to the decision on removal. Moreover, the rights conferred by Article 8 are not the only rights to be considered under paragraph 395C. The risk of persecution on return would be equally relevant, even though it too could be the subject of an application under Part 11 of the Immigration Rules.

[22]I would add that in my view, it would be better if paragraph 395C expressly addressed the manner in which the factors to which it refers are to be used rather than leaving it to be inferred.

[23]Whether I would have made the same decision as the Senior Immigration Judge on the Appellant’s facts is not the issue before us. I have considerable sympathy with her case, as did Sullivan LJ when granting permission to appeal. However, the only ground of appeal is whether the Senior Immigration Judge applied the correct legal test. In my judgment he made no error of law. It follows that I would dismiss her appeal.

[24]I agree.

[25]I also agree.