England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. TH/01198/2006, [2007] UKAIT 00082]

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th November 2007

Lord Justice Richards:

1. The applicant is a national of Bangladesh. She married a British Citizen in Bangladesh in 1995. They had a daughter who was born in April 1999 and was herself a British citizen. The marriage broke down and the applicant resolved to come with her child the United Kingdom. With the help of her sister and brother-in-law she had the daughter brought into this country in September 1999. She herself travelled here and entered the country illegally a few weeks later. Early the following year, she submitted an application for leave to remain as a dependant of her brother. In that application she made no mention of her daughter. She initiated divorce proceedings against her husband and in March 2002 obtained a financial settlement consisting of a lump sum of £200,000 and payments of £250 per month by way of support for the daughter.
2. The application for leave to remain in the United Kingdom was refused by the Secretary of State. On appeal to an immigration judge, the essential question became whether removal to Bangladesh would be contrary to the right to respect for family life under article 8. The judge found that the applicant had established a family life here and that her removal would interfere with it. In considering the issue of proportionality, the judge found that the child was indeed the applicant's daughter and that the daughter had been in this country for seven years. That had not been the position at the time the matter was considered by the Secretary of State, but was just the position at the date of the hearing before the judge.
3. The judge referred to Home Office policy DP5/96 which, for present purposes, can be summarised as containing a presumption that removal will not be appropriate in the case of families with children who have been living in the United Kingdom for seven years or more, but which recognises that there may be circumstances where removal is nonetheless appropriate and sets out a number of criteria to which regard will be had in reaching a decision. Those criteria include the question of whether there has been deception on the part of the parents.
4. The judge continued at the end of her decision:

"I understand that the secretary of state applies the policy consistently in such cases; there is no evidence before me why he has not applied the policy in this case. I am guided by the case of Baig (Fouzia) [2005] EWCA Civ 1246, that I can apply the policy directly if I wanted to. I find that the policy does apply in this case and that a failure by the secretary of state to apply the policy must be disproportionate."

5. That was the basis on which the judge found that removal would be contrary to the applicant's article 8 rights. On an application by the Secretary of State, the AIT re-ordered reconsideration of that decision. The case was heard together with two others. The relevant part of the tribunal's determination concerns its findings as to the judge's treatment of the article 8 issue. The tribunal held that the judge's approach was materially flawed, in that she had failed to appreciate the importance of the fact that the application of the seven-year policy did not create, in the circumstances of this case, a presumption in the applicant's favour. The tribunal stated that the applicant and her child had entered this country illegally and that the applicant had then made an application which was deceptive in not mentioning the child. It said that those factors were sufficient to displace any presumption under the policy and there was simply no reason to suppose that the Secretary Of State consistently allowed those with such an immigration history to remain in this country under the policy. For that reason, the judge had erred in her assessment of proportionality.
6. Having found a material error of law in the original judge's decision, the tribunal went on to substitute a decision of its own. It too considered that the relevant question under article 8 was that of proportionality. It referred to the fact that the applicant and her daughter had ample resources to live on in this country and that such resources would clearly be more than ample in Bangladesh. It is said that the only reason advanced in the grounds of appeal from the Secretary of State's decision for supposing that the daughter could not go to Bangladesh was an alleged health risk, but it held that that point was not supported by any relevant evidence and that there could be little doubt that a wealthy child in Bangladesh would have full access to adequate hygienic facilities.
7. So far as the applicant was concerned, the argument that it would not be proportionate to remove her because of the seven-year policy failed for the reasons already given in finding an error of law in the original judge's decision. The tribunal observed that the applicant had arrived in this country illegally and had always known that her presence here was precarious. It said that if she went to Bangladesh there was no reason why her child should not accompany her and be brought up by her there. There were no factors that made it disproportionate to apply immigration policy to her. Accordingly, her appeal was dismissed.
8. Permission to appeal against that decision to this court was subsequently refused by the tribunal and by Sir Henry Brooke on consideration of the papers. We are now concerned with a renewed oral application which has been presented on the applicant's behalf with spirited submissions by Miss Mallick. The first main point she advances concerns the tribunal's finding that the original judge had erred in law. What is said is that before that judge the Home Office presenting officer did not put forward any submission to the effect that the presumption under the seven year policy was rebutted or that the policy should not apply by reason of the applicant having entered this country illegally or having deployed deception in her application for leave to remain. Moreover, it is submitted that there was no such deception. The applicant had given an explanation of why she did not mention her daughter in the application she made -- the explanation being that her brother-in-law, under whose influence she was at the time, told her that to mention the daughter would have adverse consequences for her. It is said that the judge did not reject the applicant's account or make any adverse credibility finding. For those reasons it is submitted that the judge had been entitled to proceed as she did on the basis that the presumption under the policy applied to the applicant.
9. I would reject that submission. In my judgment, the tribunal was entitled to find that the original judge's reliance on the policy was flawed for the reasons it gave, and that that vitiated her assessment of proportionality. The Home Office presenting officer had in fact submitted to the judge that the seven-year policy did not apply at all and that there had been no immigration decision in relation to the daughter. By that I understand him to have submitted that the Secretary of State simply had not reached a decision in respect of the application of the policy. Whether the submission made by the presenting officer was well-founded does not matter. There is certainly no record of his having made any concession that would have entitled the judge to find that the Secretary of State applied the policy consistently in favour of applicants in such cases -- that is to say, in cases having the characteristics of this case.
10. It may be right that the tribunal was wrong to refer to the daughter as having entered this country illegally, given that the daughter was a British Citizen, but if it was an error it was, in my view, not a material one. I am satisfied that the tribunal was correct to approach the matter on the basis that the applicant herself had entered the country illegally and that it was justified in describing as deceptive the applicant's omission of reference to her daughter in the application that had been made to the Secretary of State following her arrival in this country.
11. Accordingly, I take the view that the tribunal was plainly entitled to proceed to a fresh decision of its own. Miss Mallick challenges the decision that the tribunal then made on the basis that there was a failure to consider all the circumstances relevant to the assessment of proportionality. It is said that there was no consideration, or no proper consideration, of the fact that the applicant herself had a close family in the United Kingdom and that she contended in her witness statement that she would suffer harassment from her divorced husband's family in Bangladesh. Nor was there reference to the fact that the daughter had close family ties in this country, had been present here for over seven years and was settled in school.
12. It is true that not all those matters are spelt out in the tribunal's decision and that its reasoning could have been expressed more fully, though it is right to say that reference is made to the existence of firm links enjoyed by the applicant and her child in this country with relatives here; and it is also clear, from the consideration that had been given to the application of the seven-year policy, that the tribunal had very much in mind the length of residence of the child and, indeed, of the applicant in this country.
13. It seems to me that that tribunal was entitled to pick out, for specific mention in its reasons, matters that had been put forward in the original grounds of appeal from the Secretary of State's decision, and that it is clear that the tribunal had in mind (even it if didn't specifically mention) other matters that were dealt with by the original judge in her decision. I do not accept that there was any arguable failure by the tribunal to consider relevant matters in reaching its decision on proportionality. It seems to me that the reasons it gave were adequate and the conclusion it reached was properly open to it.
14. Miss Mallick also contended that if the tribunal was in doubt as to the sufficiency of the findings of fact made by the original judge, or as to the sufficiency of the factual material before it, it should have adjourned the stage 2 reconsideration or it should have allowed the appeal to the extent of remitting the matter for consideration of the policy by the Secretary of State. However, in the light of the conclusion I have already expressed, it seems to me that there is no substance in those contentions. The tribunal was entitled, for the reasons I have given, to proceed to a decision and to reach the decision it did, rather than to adjourn or remit the case. Accordingly, in my judgment, an appeal would have no real prospect of success and this application should be dismissed.

Lord Justice Carnwath:

15. I agree. I also pay tribute to Miss Mallick's helpful submissions, but I see no basis on which we can interfere. I also note that this was a decision of a very experienced panel of the tribunal, presided over by the deputy president with two senior immigration judges. The House of Lords has recently emphasised the importance of respecting the decisions of the AIT, expect in cases where there is some genuine issue of law, which deserves consideration by this court.

Order: Application refused