COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[AIT No. IA/02955/2005]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE HUGHES
| HC (JAMAICA)
|- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr B Collins (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Hughes:
"The first Appellant is now aged 48 years. She entered the United Kingdom on 06/11/91, having been given leave to enter as a visitor for a period of six months. Since the expiration of that leave, it has not been extended.
6. The first Appellant left behind in Jamaica her four children. They were cared for by her mother, after her husband's death in 1992. The first Appellant undertook employment as a cleaner to send money back home for the maintenance of her children.
7. The first Appellant's two daughters, Milisha and Tadar, came as visitors to their mother in 1993. Her two sons, of whom the second Appellant is one, came to the United Kingdom in 1994. All children were minors when they came. After expiry of their leaves to remain, all four children remained in the United Kingdom as overstayers with no rights to remain. The first Appellant arranged for their education, and their treatment, and her own, under the National Health Service and she continued either to work illegally or to receive welfare benefits to which she was not entitled. Both the first Appellant's two daughters have children of their own. Milisha, who is now a British citizen, has a daughter and a son who are British citizens, also. Tadar has indefinite leave to remain granted by the Respondent in September 2006. Tadar's four children have been granted indefinite leave to remain in line with the grant to their mother.
8. On 08/11/01, the Appellants, and the first Appellant's elder son, Haisley, applied for indefinite leave to remain in the United Kingdom on the basis of long residency. The applications were refused with no right of appeal on 04/03/03. In March 2003, the Appellants and Haisley were instructed to leave the United Kingdom. They did not. In June 2005, the Respondent decided to remove the first Appellant and her sons from the United Kingdom. The decision was appealed by both the first and the second Appellant.
9. The appeal of the first Appellant's elder son, Haisley, is not before me. Evidence has not been provided to show that he is anything other than unlawfully resident in the United Kingdom. Insofar as his circumstances impact upon those of the Applicants, it is appropriate to note that he has suffered from mental illness, certainly from early 2004 and he had hospital treatment for significant psychotic episodes during 2004. He lives close to his mother and siblings. He is engaged to a British citizen, whom he intends to marry. They have a daughter who was born in January 2006. No specific wedding plans have yet been made. I am told that Haisley's fiancée does not live with him because she fears that if he relapses, harm may come to her or to their daughter.
10. Like Haisley, the second Appellant lives near to his mother and siblings. He and his wife married in August 2004, having cohabited since October 2001. Their son Jamal was born in September 2002. The second Appellant has had a successful school carer, both in terms of achieving qualifications and additionally, as a successful sportsman, playing cricket at county level during his late teen years. He obtained employment in early 2001, maintaining his wife and son from his salary. Because his employers became aware of his uncertain immigration status, his employment has now ceased, but he is anxious to re-enter the labour market as soon as possible. Presently he and Jamal are supported by the earnings of the second Appellant's wife, who has lawful residence in the United Kingdom, having been indefinite leave to remain by the Respondent in July 2002."
"Since 2002, when he and his wife commenced cohabitation and she obtained indefinite leave to remain, and, since 2004, when they married, it has been open to the second Appellant to apply, with her support, from Jamaica to enter the United Kingdom lawfully for settlement. He could be more sanguine of a successful outcome than any opportunity which would be afforded to his mother were she to return to Jamaica. He did not choose to try to regularise his status in this way."
"So far as the second appellant is concerned, the Tribunal accepted the submission that the determination is irremediably based upon a consideration of whether the second appellant would satisfy the requirements for entry clearance from Jamaica: a factor which the Court of Appeal held in SB (Bangladesh) v SSHD  EWCA Civ 28 to be irrelevant in determining proportionality."
Lord Justice Tuckey:
Lord Justice Thomas:
Order: Application refused