ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
SENIOR IMMIGRATION JUDGE HANSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Charles Bourne (instructed by the Treasury Solicitor) for the Respondent
Hearing date : 28 June 2011
Crown Copyright ©
Lord Justice Stanley Burnton:
(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).
"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(ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee);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."
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:
(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.
Senior Immigration Judge Hanson's determination
"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."
(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.
"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."
The contentions of the parties
Lord Justice Patten;
Lady Justice Black: