QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF TASAWAR ALI||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR JONATHAN MOFFETT (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
The factual background
"I lived with my wife and we bought our own home in 1998 where we both resided until I got arrested and detained by the immigration authorities in December 2000. Up until this period we had a relatively good marriage. There were arguments like in any other normal marriage but we generally got on with each other. As I am unable to read or write English my wife advised me in or around 1998 that my immigration status had been regularised. I took this for granted and did not question her nor did I ask to see my passport as all of my personal documents were always kept by my wife.
"During the end of November 2000 my wife and me had a big argument as I had evidence that she was seeing other men. We had a major row and she stopped speaking to me. It was only after I got arrested on 13 December 2000 was I informed by the immigration authorities that I was an overstayer and my status had not been regularised."
"We have lived together as man and wife from June 1996 until March this year (2000) although we have always had arguments and ups and downs."
She goes into the detail of one particular argument. I need not for present purposes. She says this:
"I am aware that my husband's permission to stay in this country ended/expired on 28 June 1997 but since we were always having arguments I told him that I was not prepared to support any application he might make to stay permanently in the UK as my husband. That is still my view and I do not wish to sponsor any application."
She does not state when this conversation was said to have taken place.
Events after the claimant's arrest
"[The claimant] is an Indian National and initially entered the UK on 28 June 1996 as a spouse of a UK citizen and was granted leave to enter until the 28 June 1997. Unfortunately [he] was misled into believing ... that his immigration status had been regularised. The marriage has now broken down recently and [he] has now no immigration status in the UK."
They enclosed a letter from the general manager of his employers and stated:
"We have requested that the recruitment search be waived in this instance, as finding a replacement for [the claimant] would be extremely difficult, having been employed for five years and having developed some of the key recipes."
" ... we do not issue work permits when [persons such as the claimant] are already in the UK. Instead we make a recommendation to the Immigration and Nationality Directorate at the Home Office.
We have considered the application and have notified the Home Office that we are prepared to approve this employment for 60 months.
The Home Office will now decide whether they will give permission for [the claimant] to remain in the UK to take this employment and will write to you with their decision."
"The Secretary of State does not accept that [the claimant] was unaware that he had overstayed his permitted leave to enter the United Kingdom as his permitted leave was clearly notified to him in his passport on arrival."
It then sets out a little more background:
"As an overstayer [the claimant] does not qualify for leave to remain under the immigration rules since he did not enter the United Kingdom in possession of a work permit as required by the immigration rules.
His case has now been considered under the Home Office policy relevant at the time of these decisions to refuse your client leave to remain on the basis of work permit employment.
That policy stated that switching to work permit employment would be granted provided that:
1. Work Permits UK have approved the employment application [in this case they have];
2. There is no adverse immigration history (for example overstaying but any adverse factors should be considered on their merits)[the issue in this case];
3. The applicant is not a student sponsored by his/her government or an international organisation [the claimant is not];
4. There are no overriding security implications [there are not].
The letter goes on to say:
"In the particular circumstances of [the claimant's] case it has been decided that as an overstayer who had been served with administrative removal notices under Section 10 of the Immigration and Asylum Act 1999, that his subsequent successful application for a work permit should not avail him. In reaching this decision the Secretary of State has taken full account of the representations made out on [the claimant's] behalf, including those by his employer. Whilst his employment record is to his credit, his work as for Mumtaz Food Industries is not considered to be a sufficiently compelling compassionate factor to justify allowing him to remain in the United Kingdom."
Accordingly, the application he made was refused.
"(a) The claimant had on two occasions stated on his application form for leave to enter the United Kingdom that he had been educated to 6th Standard in India."
As I understand it, that is not a matter now pursued.
"(b) The conditions of entry had been notified to him in writing in his passport both on his initial entry to the United Kingdom on 28 June 1996, and when he returned to the United Kingdom after a month's absence on 26 July 1997.
(c) The Claimant was (even on his own account) aware of the requirement to regularise his stay in the United Kingdom after 12 months. Having previously made two applications in writing for leave to enter (albeit that they were completed on his behalf and he was required only to sign each of them), he was likely to have been aware that he was required to make a further application in writing which would require his signature.
(d) No such application had been made.
(e) In her statement to the Immigration Service, the Claimant's wife had stated: 'I am aware that my husband's permission to stay in this country ended/expired on 28 June 1997, but since we were always having arguments I told him I was not prepared to support any application he might make to say permanently in the UK as my husband.'"
Implicit in 2(b) to 2(d) of those grounds is a rejection by the Secretary of State of the claimant's contention that he was illiterate and misled by his wife. Implicit in (e) is an acceptance by the Secretary of State of the account of the wife, and a rejection of the claimant's account. Was the Secretary of State entitled to reject the claimant's account and was he entitled to accept, in preference to it, the claimant's wife's account?
Mr Blake's submissions
"The Secretary of State does not accept that [the claimant] was unaware he had overstayed his permitted leave to enter ... as his permitted leave was clearly notified to him in his passport on arrival."
Mr Moffett's submissions