England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL Nos: IA/20151/2011; IA/20154/2011; IA/20156/2011; IA/20160/2011]

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st January 2013

Lord Justice Elias:

1. This is a renewed application for permission to appeal against a decision of the Upper Tribunal promulgated on 16 March 2012. They dismissed the appellant's appeal against a decision of the First-tier Tribunal, who in turn dismissed an appeal under section 82 of the Nationality, Immigration and Asylum Act against the decision of the Secretary of State to remove the appellant from the United Kingdom. This is a second appeal.
2. The background briefly is the appellant is a citizen of India who came to the United Kingdom illegally. He was removed and directions were given to send him back to India.
3. Section 10A of the Immigration Act 1971 provides:

"Where directions are given in respect of a person under any of paragraphs 8 to 10 above, directions to the same effect may be given under that paragraph in respect of a member of the person's family."

He has a family. There are two natural children and there is his wife.

4. The submission advanced this morning by Mr Malik is actually not directed to the position of the appellant himself but rather the position of his wife. He says the wife is an overstayer. She came to this country on a limited permission to stay and she has remained beyond the time for which she was granted leave to be here. In the circumstances, he says that there is no power to direct that she should be removed under paragraph 10A. He says that the reference there to a member of the person's family cannot properly be a reference to someone like the appellant's wife but only to a member of the family who himself or herself is an illegal entrant.
5. I do not, with respect, see that that is a possible construction of this provision. It renders that provision wholly otiose if that is the case. One does not need a provision to say that members of the family may in appropriate cases be required to leave with the illegal entrant if they can only be removed if they are illegal entrants in their own right. So on that simple ground I reject this submission.
6. Mr Malik submitted that if she were to be removed merely by reasons of being an overstayer, there is a discretion that might be exercised in her favour which does not arise under this provision. That may be so but there is nothing to prevent the Secretary of State acting under this provision rather than under the 1999 Act, and in any event it cannot affect the construction of the 1971 Act, section 10A (inaudible). There is also the problem that the appellant is not the wife in these proceedings, but that perhaps is a secondary matter.
7. Had this point raised a serious issue of statutory construction then I do accept that the second appeal test would be satisfied; it would be an important point. But I have to say effectively for the reasons given by Laws LJ when refusing permission on paper that this is a straightforward construction of what seems to me a straightforward section, and I see no prospect of the appeal succeeding.

Order: Application refused