Case No: C4/2005/0617
 C4/2005/0617(A) 
Neutral Citation Number: [2005] EWCA Civ 1246 
IN THE SUPREME COURT OF JUDICATURE  
IN THE COURT OF APPEAL (CIVIL DIVISION)  
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL 
Royal Courts of Justice  
Strand  
London, WC2  
 
Wednesday, 5 October 2005
  
B E F O R E: 
 
LORD JUSTICE WARD  
  
LORD JUSTICE BUXTON  
  
MR JUSTICE MAURICE KAY 
  
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FOUZIA BAIG
Applicant  
-v- 
  
SECRETARY OF STATE FOR THE HOME DEPARTMENT  
Defendant  
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 - - - - - - - 
MR RICHARD DRABBLE QC and MR E FRIPP (instructed by Asghar & Co Solicitors, Berkshire) appeared on behalf of the Applicant 
MR JEREMY JOHNSON (instructed by Treasury Solicitor, London) appeared on behalf of the Defendant 
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J U D G M E N T  

1. LORD JUSTICE WARD:  I will ask Buxton LJ to give the first judgment. 
2. LORD JUSTICE BUXTON:  This is an application for permission to appeal with appeal to follow if permission is granted, having been so ordered by Hooper LJ after consideration of the papers. 
3. I should preface the judgment by saying that since I shall have occasion in the course of it to criticise the way in which this case has been conducted before its arrival in this court, Mr Drabble QC and Mr Fripp who have appeared before us today were not instructed in the case until an application was made for permission to appeal to this court. 
4. The case concerns a family, the mother of which is the applicant, Mrs Baig.  Since there has been some confusion at an earlier stage as to the exact way in which the adult members of the family should be described and addressed, I hope that it will be acceptable if I refer to Mrs Baig and her husband hereafter as the husband and the wife.  They now have four children, of whom we are particularly concerned in this case, for reasons that will become apparent, with Feroz, who was born in September 1995, and Anoosh, who was born in February 1997. 
5. The issue in the application as it has developed is something that I would describe for purpose of identification only at the moment as the seven-year policy.  That is a policy adopted by the Secretary of State in relation to the removal from this country of children who have been resident here for seven years or more and therefore, contingently, the non-removal of their parents and other family members.  That, as I say, is a description for identification only.  At a later stage in the judgment I will have to return to the exact terms of that policy which were until a late stage in the application a matter of some dispute. 
6. It is necessary to say a good deal about the history of this family and its relations with the immigration authorities of this country, because that is an important part of the background to this application and to the issues that have to be determined in it. 
7. It appears, although we have seen no documents vouching for the early days of the history, that the husband was between 1986 and 1993 unlawfully in the United Kingdom but left this country in the face of enforcement action.  In February 1995 the husband and wife entered the United Kingdom unlawfully, both using false passports.  In July 1995 they travelled to the Netherlands, apparently intending to settle there permanently.  The husband was then using a further false passport which, as the adjudicator found when determining the wife's application, he had dishonestly obtained earlier in 1995.  As I have said, Feroz was born in September 1995, in the Netherlands.  The adjudicator found in paragraph 15 of his adjudication that that birth was registered by the husband using the false passport that the husband was then travelling under.   
8. In February 1996 the wife, and it would appear also the husband (though that is not wholly clear) unlawfully re-entered the United Kingdom.  They both lived here for the following four years without making any attempt to regularise their immigration status.  In February 1997, as I have already said, Anoush was born.  She had been born to the couple in that immigration status in this country.   
9. In October 2000 the husband, when returning from what he described as a holiday in Pakistan, was detained on entry for the use of a false passport.  Thereafter the authorities in this country made a series of unsuccessful attempts to deport him.    
10. On 10 February 2001 the husband made an application under the Regularisation of Overstayers Scheme, but he does not appear to have attended the interviews that were requisite for the pursuit of that application.  He appears also to have lost contact with the immigration authorities.  In July 2002 he was eventually apprehended, apparently still with a false passport; and the application he had made 15 months earlier under the regularisation scheme was refused and removal directions were set.  He then made an application on 23 July 2002 for judicial review of the deportation order.  In that claim he asserted that to deport him to Pakistan would interfere with his family life in a disproportionate way.  Attention was drawn to what was described as Policy 06999, that is to say, the seven-year policy to which I have already referred.    
11. Up to that date the wife had, so far as we know, taken no separate immigration proceedings of her own or sought any relief from her status as an unlawful resident.   
12. On 21 August 2002, apparently acting through the same solicitors as had been acting for the husband, the wife claimed asylum and also human rights protection based upon the seven-year policy.  We have not seen the document in which that claim was set out, and Mr Drabble very frankly told us that he was unable to give any account or any explanation on the part of the wife as to why that claim was deferred until she had been in the country for more than six years, and why it was thought either necessary or appropriate for her to rely on the seven-year policy, that is to say, the seven-year policy as it applied to her son Feroz, when those issues were already being ventilated in judicial review proceedings brought by her husband.  Nor does it appear to have been brought home to the immigration authorities and to the judicial authorities who were charged with dealing with the wife's application that there were collateral proceedings in relation to the husband. 
13. On 2 October 2002 the judicial review proceedings against the husband's removal directions were withdrawn.  We are told that that was on an undertaking by the Secretary of State to consider the case under the seven-year policy.  That may well be so, though that undertaking did not find its way into the court order.  However, on that same day, the husband did indeed make an application in formal terms under the seven-year policy in these terms:  
"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."  
14. On 9 November 2002 the Secretary of State rejected the husband's application under the seven-year policy.  It is not necessary to set out the grounds that the Secretary of State gave, because Mr Drabble fairly said that he had no complaint to make of the Secretary of State's determination as such.  His complaint in this case concerns the way in which the adjudicator handled the matter.  The husband did not appeal against that determination.   
15. On 29 May 2003 the Secretary of State refused the wife's asylum and human rights claims.  There was no reference in that letter to the seven-year policy even though the wife had relied on it in her original claim.  The wife appealed to an adjudicator.  Having instituted separate proceedings by her application of 21 August 2002, she was able thereafter to assert the rights of appeal appropriate to those proceedings.   
16. The adjudicator dismissed the asylum claim.  The claim was based upon fear of persecution because of the nature of their marriage were the husband and the wife together to return to Pakistan.  The adjudicator said of the asylum claim and of the husband and wife this, in paragraph 17:  
"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."  
17. So far as the claims under and related to Article 8 and relating to the seven-year policy were concerned, the adjudicator took the point that that issue had not been properly asserted in the grounds of appeal, merely that the skeleton argument before him had stated:  
"... 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."   
18. He said that he would not consider that because of the defect in the ground of appeal.  It is not contested that he was wrong procedurally to take that view.  He did, however, more generally consider the Article 8.2 considerations that were placed before him, in particular in respect of the health of Feroz.  He rejected a claim that Feroz's health militated against removal; he pointed out that the family was going to be removed as a whole and therefore that would not interfere with their family life.  He also said this, in respect of that part of the claim, in paragraph 20:  
"... 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.   
19. It is fair to say that the adjudicator considered that that application had not been maintained by counsel then appearing in front of him.  There was a good deal of dispute as to whether or not that was the case.  I do not need to enter into that, save to say that this was a case where the adjudicator formed a really very clear view of what the submissions had been before him, a view that, if it was wrong, it was surprising that he should have taken.  That view was controverted in grounds of appeal settled by counsel; but in fact counsel who settled those grounds did not appear at the hearing before the IAT.  Normally a court will be content to be informed from the Bar by counsel who has been present as to what actually happened.  But where that facility is not available, arguments about the adjudicator's view of what happened at the hearing ought to be supported by a separate statement from counsel who was present, verified by him, and the matter should not just be left to the grounds of appeal.  Generously enough, however, the Immigration Appeal Tribunal appeared to agree to act on the basis that they had.    
20. The grounds of appeal to the Immigration Appeal Tribunal (leaving aside the point that I have just mentioned), settled by counsel who had appeared before the adjudicator, contended first that the adjudicator had failed to consider Article 8 at all, something that the Immigration Appeal Tribunal thought was not the case, and then went on to say this, in ground 2:  
"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."   
21. The Abdi principle, as I understand it, asserts that it is an error of public law if an administrator does not properly consider his own policy.  That, on its face, seems to be the basis upon which the matter proceeded to the Immigration Appeal Tribunal.   
22. I turn to the decision of that tribunal.  Permission to appeal to that tribunal was granted by a vice-president who said this, in his effective ground:  
"... 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."  
23. As I have said, counsel, for whatever reason, was not instructed to appear before the Immigration Appeal Tribunal.  The wife was represented there by her then and now solicitors.  They provided a skeleton argument for the Tribunal, which it is necessary to set out in full.   
"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."  
24. I am afraid I have to say that I find the first paragraph of that skeleton argument breathtaking.  It clearly seems to suggest that the reason why Feroz had by the time of those proceedings spent over eight years in the United Kingdom was somehow to do with listing before the tribunal.  That, of course, was completely untrue.  The reason why Feroz had spent by that time eight years in the United Kingdom was that his father had evaded deportation since that order was originally made against him in the year 2000.  It is quite wrong that that submission should have been made and it is wholly misleading.  Secondly, the argument went on to say that the seven-year policy and the Article 8 claim should be looked on with favour because of the amount of time that had passed.  That again should have made clear by something other than a brief reference to the husband's "awful immigration history" as to why it was that this family was still in the United Kingdom. 
25. The Immigration Appeal Tribunal found great difficulty in dealing with this application because of what they described in a later document as the inadequacy of the representation. The terms of the skeleton argument amply bear that out.  This, however, is what they said in paragraph 4 and following of their determination:  
"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."  
26. Now, true it is that the Immigration Appeal Tribunal misunderstood on whose behalf it was that the earlier correspondence and exchanges had taken place.  They say that the judicial review proceedings and the letter of 9 November 2002 were in relation to the claim by the wife.  That, as we now know, is not the case; they were in relation to the claim by the husband.  I would say two things about that.  First, that confusion may well have been shared by the husband and wife's solicitors, because if we look at the grounds forwarded to the Immigration Appeal Tribunal seeking leave to appeal to this court, the history seems to be described indifferently according to whether the husband or the wife was engaged.  That is particularly the case in paragraphs 8 and 9 of that document, where the agreement to withdraw the judicial review proceedings, provided that a claim was considered under the seven-year policy, and the correspondence initiating that policy is described as having been written in the name of the then appellant - that is to say the wife, not the husband.  Secondly, the substance of the matter was clearly as the Immigration Appeal Tribunal thought: that there had already been substantive consideration in the letter of 9 November 2002 of the application in respect of this family under the seven-year policy, and it was simply supererogatory at best for that matter to be repeated.    
27. However, all that said, it is understandable, in my view, why the Immigration Appeal Tribunal, seeing the history of this matter, took the view that if the adjudicator had known all the facts and had been improperly informed about the letter of 9 November 2002, he would have dismissed the claim.   
28. There are, however, some technical difficulties about that.  First, we have already noted that effectively the adjudicator declined to consider the seven-year policy at all because of the state of the pleadings; and it is conceded that that was a mistake.  Secondly, I myself certainly had originally thought that the complaint in this case and in this appeal before this court was that both the special adjudicator and the Immigration Appeal Tribunal should, consistently with Abdi, have considered whether the Secretary of State had properly applied his own policy.  Mr Drabble this morning says that that is not the point; the objection to the special adjudicator's determination which the Immigration Appeal Tribunal did not even appreciate, let alone correct, is that under the authority of Huang the question of the application of such a policy to an individual case was a matter for the adjudicator and not simply a matter for review of a decision of the Secretary of State.  The latter error (if it was an error) - that is to say the failure to consider the matter substantively - would be, in my judgement, an error of public law; and it is now well decided that errors of public law fall within the jurisdiction of the Immigration Appeal Tribunal, and therefore the jurisdiction of this court under section 101(1) of the 2002 Act.  Any doubts on that point, which are ventilated at some length in the skeleton before us, have been put to rest by the decision of this court in HC [2005] EWCA Civ 893.   
29. To have dealt with that matter would have involved a certain degree, to put it mildly, of intervention of its own motion by the Immigration Appeal Tribunal, in view of the difficulty of extracting that point at all from the pleadings before it, and the almost certainty that it was never raised by the applicant's representative.  However I am content, for the purpose of discharging this application, to assume that there was that omission on the part of the Immigration Appeal Tribunal, and that prima facie, therefore, the correct remedy, and the remedy which Mr Drabble seeks, is for the matter to be remitted to an adjudicator so that he can properly apply himself, which so far the adjudicator has not done, to the seven-year policy.   
30. In order for the adjudicator to do that, we have to know what the policy is.  We have already seen that those appearing before the Immigration Appeal Tribunal made no attempt, or were not able, to enlighten the tribunal on that point.  Since then various materials have been produced.  There was originally some dispute between the parties as to what the actual content of the policy was.  That has been resolved, at least for the purpose of this application, but I must set out how the documents stand.  The Secretary of State has caused a witness statement to be put before the court which exhibits a document (DP5/96) which is asserted, at least in the witness statement, to be "the policy".  It reads as follows:  
"DEPORTATION IN CASES WHERE THERE ARE CHILDREN WITH LONG RESIDENCE.  
Introduction  
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.   
Policy   
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.   
31. In February 1999 there was a written answer to a Parliamentary question.  Without making any assumptions that one should not, it is fairly clear that the purpose of this question was simply to enable the responsible minister at the Home Office to announce a change in the number of years for which the children must be in the United Kingdom before the policy bites at all.  The policy at the date of the 1996 document was that that period should be ten years.  The decision was taken in 1999 and pronounced by Mr O'Brien, the Home Office minister, to reduce that period to seven years.  Mr O'Brien said this, however:  
"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."  
32. Mr Drabble argued that that statement did not merely make a numerical reduction of ten years to seven, but it introduced a significant shift in the policy; that is, that it made it clear, which the original document did not, that the assumption (and Mr Drabble would say the strong assumption) was that children falling within the numerical period of years should not be removed from this country, and that an exceptional case would indeed need to be demonstrated before they were removed. 
33. There was some resistance originally on the part of Mr Johnson for the Secretary of State in accepting that there had indeed been a change, or that the change should be formulated in the way that it was by Mr Drabble.  However, after some discussion Mr Johnson was prepared to accept for the purpose of this case that a fair reading of the two documents taken together, DP596 and the Parliamentary answer of Mr O'Brien, was to be found in a passage set out in Butterworth's Immigration Handbook at paragraph 1121.  That also is what Mr Drabble said was the policy that the adjudicator, were the matter to be remitted to him, should apply of his own motion.  That reads as follows:  
"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.   
34. I have no hesitation in saying that on the facts of this case a rational adjudicator could reach only one conclusion when applying that policy; that is, that it should not apply to this family.  He would, as I would, pay respect to the presumption.  He would then have to look at factors that might indicate that enforcement action was still appropriate.  In this case the factors are as follows.  First, there has been long residence of both husband and wife without leave: in the wife's case it is nine years; in the husband's case, taking into account the period when he was allegedly in the United Kingdom in the 1980s, 16 years.  Secondly, the removal has been delayed, with the result that the children have acquired a starting point time of residence.  It has been delayed, first, by the husband's conduct in absconding after his application in 2000, the date at which he was originally ordered to be deported.  On that date Feroz was aged only five and Anoush aged only 3.  It has been further delayed by the wife's conduct which, in the absence of other explanation, I can only interpret as having been deliberate in order to attempt to extend the family's stay, by starting the present proceedings in 2002.  As I have said, no explanation was forthcoming as to why those proceedings were taken then, or as to what the relationship was said to be between them and the husband's judicial review proceedings.   
35. I also bear in mind what I have already quoted from paragraph 20 of the adjudicator's determination, that these proceedings in relation to the asylum claim were fabricated and, in relation to the seven-year policy, had been deliberately brought only with a view to extending the family's time in the country. 
36. Thirdly, neither of these children was conceived when the parents had leave to remain.   
37. Fourthly, there is a history in this case of deception - deception of the immigration authorities, failure to comply with the immigration requirements of this country and, I am afraid I have to say, lack of full frankness with the appellate bodies which have considered this case before it came to this court. 
38. In all these circumstances, an adjudicator could only come to one conclusion.  Mr Drabble very fairly accepted that if that was this court's view the matter should not be remitted.  I therefore would not remit it.  I would not grant permission for this application to proceed.   
39. LORD JUSTICE MAURICE KAY:  I entirely agree. 
40. LORD JUSTICE WARD:  I agree.  It would be scandalous not to dismiss this application.   
 (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).