IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE BUXTON
MR JUSTICE MAURICE KAY
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR JEREMY JOHNSON (instructed by Treasury Solicitor, London) appeared on behalf of the Defendant
Crown Copyright ©
"We now wish to make a formal application that our client be allowed to remain in the UK on the basis of the concession policy that our client's oldest child has been in the UK for 7 years."
"I am satisfied also that both of them have knowingly behaved dishonestly in order to remain in this country. They were not persecuted when they were in Pakistan and they have failed to establish that there is any risk whatsoever to them should they be returned. It follows therefore that they have failed to bring themselves within the terms of the 1951 Convention."
"... the various documentations produced all point to the fact that the appellant, her husband and four children should be granted indefinite leave to remain in the UK by taking advantage of policy 069/99."
"... it is clear that both the appellant and in particular her husband are dishonest and I do not accept any of their evidence on this aspect of their appeal. This like the asylum appeal is a further attempt without merit to delay their return to Pakistan."
He therefore rejected the application under Article 8.
"Moreover, there was the issue of the 7 year children's policy under Mobin Jagot Co/2353/98 [that is a case decided by Moses J where that judge made some observations about the policy], which was raised before the Adjudicator who was asked to consider the policy in light of the Abdi principle. This has not been referred to at all. Nor has it been considered. It was also referred to in the skeleton argument submitted by those instructing him."
"... it is arguable that in considering proportionality of removal it is incumbent on the adjudicator to deal with the submissions made to him that removal would be in breach of government policy relating to the removal of minors who have been here 7 years or more as relevant to issues of proportionality."
"1. In the time that it has taken for the [wife's] matter to be listed before the Tribunal, the [wife's] son has now spent over 8 years in the UK. The [wife's] eldest daughter has now also spent over 7 years in the UK.
2. Solicitors for the [wife] would therefore argue that the Article 8 claim is now very strong and that the [wife] should be granted leave to remain in the UK, notwithstanding the [wife's] husband's awful immigration history."
"4. Notwithstanding the basis upon which permission to appeal to the Tribunal had been granted, [the appellant's representative] was entirely unable to produce to the Tribunal a copy of anything reassembling 'the 7 year children's policy'. Furthermore, upon examining the documentation that was before the Tribunal, it readily became apparent that the entire basis of the current appeal was misconceived. Paragraph 21 of a chronology produced by Ashgar & Co on behalf of the appellant and put before the Adjudicator states as follows:
'21. The Appellant's asylum and human rights appeals are refused by a letter from Secretary of State dated 29 May 2003. Without policy 069/99 being substantively considered by the SSHD.'
5. Not only was that entirely incorrect, at the time at which it was submitted to the Adjudicator, but Messrs Asghar & Co also knew it to be false. The documentation reveals that earlier in 2002, judicial review proceedings brought on behalf of the appellant had been settled by consent on the basis that the respondent agreed substantively to consider the position of the appellant by reference to Policy 069/99. [The Home Office presenting officer] produced to the Tribunal copy correspondence between the Home Office and Messrs Ashgar & Co. This correspondence makes it plain that a request was made on 2 October 2002 by Messrs Asghar & Co that the appellant be allowed to remain in the United Kingdom on the basis that her eldest child had been in the United Kingdom for seven years. Although the Home Office letter of 9 November 2002 does not state in terms that the policy to which the respondent had regard in considering the matter was that of 069/99 [The Home Office presenting officer] informed the Tribunal that a note in the Home Office file records this was indeed the policy to which the respondent had regard.
6. Accordingly, whilst the letter of refusal of 29 May 2003, written in response to the appellant's application for asylum, makes no reference to Policy 069/99, that policy had already been substantively considered by the Secretary of State following Asghar & Co's letter of 2 October 2002.
7. Before the Tribunal, [the appellant's representatives] submitted that the Adjudicator was nevertheless in error in failing to deal with the policy in his determination. It cannot, however, be a material error of law for an Adjudicator to fail to deal with an assertion which is in reality wholly false. Had the Adjudicator been aware of the true position of this case, it cannot possibly be said that he would have allowed the appellant's appeal, either on the basis that the decision in her case was not in accordance with the law, or on any other basis."
"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE.
The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged [then a figure appears to which I shall come back] or over or where, having come to the United Kingdom at an early age, they have accumulated [again the same figure] years or more continuous residence.
Whilst it is important that each individual case must be considered on its merits, the following are factors which may be of particular relevance:
a. the length of the parents' residence without leave;
b. whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
c. the age of the children;
d. whether the children were conceived at a time when either of the parents had a leave to remain;
e. whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
f. whether either of the parents has a history of criminal behaviour or deception."
The document goes on to say very properly that it is very important that full reasons should be given to make it clear why circumstances of a particular case have been considered. That document is dated March 1996.
"For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under [the age of] 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."
"Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:
- the length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
- the age of the children;
- whether the children were conceived at a time when either of the parents had leave to remain;
- whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
- whether either of the parents has a history of criminal behaviour or deception."
That, then, if this matter were to be remitted, would be the policy that the adjudicator would have to apply.
(Application dismissed; Applicant to pay the Defendant's costs, such costs to be the subject of a detailed assessment by a costs judge under section 11 of the Access to Justice Act).