United Kingdom Asylum and Immigration Tribunal

LSH

Heard at Field House

[2003] UKIAT 00083 A (Jamaica)

On 4 August 2003

Dictated: 4 August 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified: 23.09.03

Before:
Mr S L Batiste (Chairman) Mr P R Lane

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

Appearances:

For the appellant: Miss J Sigley, Home Office Presenting Officer

For the respondent: Miss C Simpson, of Equity Legal & Advisory Services

DETERMINATION AND REASONS
1. The appellant, whose is the Immigration Officer, Gatwick North, appeals with leave against the determination of an Adjudicator, Ms Linda Freestone, sitting at Taylor House, in which she allowed the respondent's appeal against the decision of the Secretary of State to refuse her leave to enter the United Kingdom. The facts of this case can be summarised as follows.
2. The respondent and her son Jason (then aged 1) arrived in the United Kingdom on 15 December 1993. She sought entry as a visitor for 4 weeks. This was refused, since it was considered that she was not a genuine visitor. She was granted temporary admission until 18 December 1993. However, on that day neither she nor her son reported for their return flight to Jamaica.
3. In January 1994, Immigration Officers attempted to trace the respondent, without success. A further attempt was made on 13 February 1994.
4. Nothing more was heard from the respondent until 27 March 2001, when a letter was received from solicitors who sought indefinite leave to enter on the respondent's behalf on the basis that she had two children born in the United Kingdom with her Nigerian–born, illegal-entrant husband, and that she also wished to continue treatment "for an over active thyroid gland" (explanatory statement, paragraph 7).
5. The same explanatory statement goes on to describe the husband's situation in the United Kingdom. It also gives details of the three children of the respondent. The statement then continues as follows:

"The 7 year concession applies to "enforcement" cases concerning young children but is taken into account in "port" cases which [the respondent] and [her son] fall into. It was decided that the passengers did not benefit from this concession. Other enquiries revealed that treatment for the passenger's medical conditions is available in Jamaica. In light of all the circumstances above, there appear to be no reasons sufficiently compelling to waive the mandatory entry- clearance requirement. The passengers were, therefore, refused leave to enter in accordance with the rules … and removal directions were set for 7 September 2001. The passengers did not arrive for their return flight."

6. The explanatory statement ended by analysing the submissions put forward on behalf of the respondent, regarding Article 8 of the ECHR. The statement indicates that the Immigration Service was satisfied that the decision to refuse entry was in accordance with the Immigration Rules and did not breach Article 8.
7. That explanatory statement is dated 18 December 2001. A letter of 26 November 2001 had also, however, been written to the respondent's representative. This letter states that:

"The settlement application submitted by your client's earlier representative was determined on 17-08-01 by way of a decision to refuse entry. This took into account the presence here of the two UK born children and the child accompanying your client to this country in 1993."

The letter goes on to say that a review had been undertaken by the Immigration Officer "with Article 8 in mind". The officer states that he had "also reviewed the substantive decision in the light of any current concessions which might apply. I have taken the view that the refusal decision will stand since your client is not availed by any concession in respect of presence in this country, or that of her children".

8. The "7 year concession" to which reference has earlier been made is contained in policy DP5/96. As currently formulated, this policy begins the following statement:-

"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 with lengthy residence in the United Kingdom. The general presumption is that we will not usually enforce the departure of a family where there is a child(ren),

who was or were either born here and have lived here continuously to the age of seven, or

where, having come to the United Kingdom at an early age they have accumulated 7 years or more continuous residence. "

9. There then follows a statement that "this policy is a concession and as such there is no obligation to agree to any application on this basis. The onus is on the applicant to show they benefit from this or any other concession".
10. Under the heading "Refusal of Applications", we find the following:-

"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 the parents have leave to remain;

whether the return to the parents' country of origin will 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;

Consideration should also be given to whether the child itself is subject to enforcement action and the outcome of any appeal against that decision."

11. The first Adjudicator who heard the respondent's appeal against the decision to refuse her leave to enter dismissed it on the ground that she had not shown that Article 8 of the ECHR would be violated by the decision.
12. On 21 January 2003 the immigration Appeal Tribunal allowed the respondent's appeal against the Adjudicator's determination and remitted the matter "to a different Adjudicator for reconsideration in the light of all the evidence, the requirements of the concession and Article 8" ( Tribunal determination, paragraph 27).
13. Thus, the appeal came for hearing before Ms Freestone. She concluded that Article 8 would not be violated. There was a family life in the United Kingdom which would suffer interference. However, the Adjudicator found that the respondent "was aware" of her "precarious immigration status when she married her husband. Jason appears to be a bright boy and although he would find it difficult to adapt I do not find that there are any insurmountable obstacles to him adapting to life in Jamaica. Because of the ages of the two younger children they would adapt more easily. There has been no evidence put before the court to show the husband could not follow the family to Jamaica. Applying the reasoning in Mahmood I find removal is proportionate and therefore I dismiss the appeal on that basis."
14. Having found this, however, the Adjudicator then went on to find that the Immigration Officer had "failed to take account of his own policy and failed to give effect to it. The well established case of Abdi says that I can allow an appeal on the ground of the failure of the respondent properly to apply a policy in the public domain." The Adjudicator then went on to refer to two recent Tribunal decisions which, she thought, "seem to cast doubt on that principle" but, noting again that "the Abdi principle is long established" she allowed the appeal "on that limited basis".

The "Abdi" principle

15. In Abdi (Dajui Saleban) v Secretary of State for the Home Department [1996] Imm AR 148, the Court of Appeal held that, if it can be shown that the Secretary of State has failed to act in accordance with established principles of administrative or common law, for example, if he did not take account of or give effect to his own published policy, that was "not in accordance with the law". At the time of Abdi, section 19 of the Immigration Act 1971 required an Adjudicator to allow an appeal if he considered that the decision or action against which the appeal was brought "was not in accordance with the law or with any Immigration Rules applicable to the case" (section 19(1)(a)(i)).
16. In the present case, Miss Simpson conceded that, even if the Adjudicator had been right to allow the appeal in reliance on Abdi, the correct course would have been for the Adjudicator to have directed this Immigration Officer to take account of policy DP5/96 and apply it to the respondent's case.

Does the "Abdi" principle apply in the present case?

17. The Adjudicator, hearing the appeal on remittal from the Tribunal, no doubt had regard to paragraph 26 of the Tribunal's determination, in which they said that "we are of the view that the requirements of the concession ought to have been given consideration by the Adjudicator, over and above the requirements under Article 8". However, as is explained in paragraph 26 of her determination, she was referred to two recent Tribunal cases, which she acknowledged threw into question whether, in the present case, she could properly allow the appeal on the basis that the decision to refuse leave to enter was not "in accordance with the law".
18. Paragraph 21(1)(a) of Schedule 4 to the Immigration and Asylum Act 1999 in essence repeats the wording of section 19(1)(a)(i) of the Immigration Act 1971, referred to above. However, as the Tribunal in Anderson [2002] UKIAT 05801 found:

"Paragraph 21(2) of Schedule 4 to the Immigration and Asylum Act 1999 states that an Adjudicator's jurisdiction on appeal under Part IV is subject to "any restrictions on the grounds of appeal". The appeal in this case was subject to a restriction set out in s.69 and s.65. That is to say, the Adjudicator's jurisdiction was limited to considering whether the decision was contrary to the Refugee Convention of the Human Rights Convention. The restrictions on the right of appeal under these sections meant that there was no paragraph 21(1) "in accordance with the law" jurisdiction to consider whether the Secretary of State had properly applied a concessionary policy".

19. The Tribunal that remitted the case to Ms Freestone does not appear to have had the above point argued before it. Indeed, the significance of the actual immigration decision being appealed appears to have been appreciated only in the course of the current proceedings.
20. The essential point is that the respondent has never been given leave to enter or remain in the United Kingdom. Hers was a "port" case, where leave to enter was refused. She was given a short period of temporary admission, which is not the same as leave.
21. The point becomes significant when one considers under what provisions of the Immigration and Asylum Act 1999 the current appeal has been brought. It cannot be argued that the appeal is, or includes, an appeal under section 59(1) of the 1999 Act against refusal of leave to enter the United Kingdom. This is because section 60(3) prevents a person from appealing against such a refusal while she is in the United Kingdom unless, at the time of the refusal, she held a current entry clearance or was a person named in a current work permit. Neither exception applies here.
22. Accordingly, the appeal is purely a "human rights" appeal under section 65(1) of the 1999 Act.
23. In deciding whether the "Abdi" principle applies in any particular case, the precise nature of the statutory provision under which the appeal is being brought must always be carefully considered. In some cases, such as section 59 itself, there is no relevant restriction on the grounds of appeal, such as to preclude an Adjudicator from allowing it, if he or she finds that the decision in question was not in accordance with the law.
24. Leaving aside the specific restrictions in section 60, an appeal under section 59(1) is entirely "at large". That much is plain from the wording of the provision.
25. The position, however, under section 65 is radically different. The wording of that section makes it abundantly clear that the only grounds upon which a person can succeed under it is that the authority taking the decision in question racially discriminated against that person or acted in breach of his or her human rights. Unlike, say, section 59(1), there is simply no scope in a section 65 appeal for an appellant to argue that, independently of the question of whether her human rights have been breached, the section requires her appeal to be allowed by reason only of the fact that the Secretary of State has not had regard to a published policy.
26. The way in which appeal rights have been provided for in the Nationality, Immigration and Asylum Act 2002 is somewhat different from the way in which such rights are dealt with in the 1999 Act. Questions of statutory construction of the 2002 Act will, no doubt, arise in due course. For the present, however, the Tribunal is in no doubt that an appeal such as the present one, brought purely under section 65 (or under section 69, or both) does not enable an Adjudicator to allow an appeal solely on the grounds that the Secretary of State or an Immigration Officer has failed to have regard to, or misapplied, a published policy.
27. This does not mean, however, that it is irrelevant to decide whether such a failure has occurred. On the contrary, in the present case, a failure to have regard to DP5/96 is clearly capable of affecting the question of whether, in the circumstances of the case, the Secretary of State or Immigration Officer has arrived at a decision that violates Article 8 of the ECHR, for example, whether the decision-maker has conducted the relevant "balancing" exercise correctly, in a case where failure to grant leave to enter would interfere with the right to respect for family life in the United Kingdom. In other words, the relevance of the policy will, in a section 65 appeal, be confined to the Adjudicator's assessment of whether, in all the circumstances, the decision breached the claimant's human rights.
28. It follows from what we have said that we respectfully differ from what the Tribunal that remitted this case to the Adjudicator said at paragraph 26 of their determination (see above). There is no question of the policy being considered "over and above the requirements under Article 8".
29. In the present case, the Adjudicator specifically found that the removal of the respondent to Jamaica, following the failure of her application for leave to enter, would not be in breach of Article 8. Her conclusions in this regard are contained at paragraph 25 of her determination, to which we have previously made reference. Having found that there would not be "any insurmountable obstacles" to the family establishing itself in Jamaica, the Adjudicator, when considering the DP5/96 on its own, came to the irreconcilable conclusion that the "return of his mother to Jamaica would cause extreme hardship to the appellant's son" (determination, paragraph 19). This difficulty arose for the Adjudicator precisely because she felt compelled to assess DP5/96 independently of the question of human rights.

Did the Immigration Officer fail to have regard to/give effect to DP5/96?

30. Unlike the Adjudicator, the Tribunal finds that the Immigration Officer in the present case manifestly had regard to DP5/96 when considering the respondent's application for leave to enter. This is plain from the explanatory statement of 18 December 2001. At the hearing before the Tribunal, there was some debate as to whether the Adjudicator had, in fact, seen this statement. However, that she clearly had is apparent from paragraph 3 of her determination, where she says that the respondent's immigration history, and the case for the Immigration Officer, "are set out in the refusal letter, the decision and the statement of the "[Immigration Officer]".
31. The relevant passages in the explanatory statement and the letter of 26 November 2001 have been set out earlier in this determination. In the Tribunal's view, they show quite clearly that the Immigration Officer has had regard to the policy, in the context of the individual facts of the present case. Insofar as the Tribunal that remitted the case to Ms Freestone may be said to have found otherwise, we respectfully differ. In particular, it is not correct, in our view, to say that the Secretary of State or an Immigration Officer has not had regard to a policy, notwithstanding that he has clearly indicated that he has done so, merely because the statement or letter in question does not set out, more or less verbatim, the terms of the policy, indicating in each and every respect how it does or does not does not apply to the person concerned.
32. In the present case, it is abundantly plain that the Immigration Officer regarded the respondent's immigration history (and that of her husband) as "particularly poor". Whilst Miss Simpson sought to argue that removal had not been delayed through protracted or repetitive representations on the part of the respondent (a fact with which we would agree), the delay was in reality occasioned by the respondent "going to ground" between her arrival in the United Kingdom in 1993 and her application lodged in March 2001.
33. In essence, at least since the coming into force of the Human Rights Act 1998, DP5/96, can be viewed as a means of guiding decision makers on the question of how to avoid reaching decisions that are in violation of Article 8. Using the policy, the Immigration Officer in the present case reached the view that family life could be carried on by the parties outside the United Kingdom. The Adjudicator was of the same opinion.

Conclusion

34. It follows that the appeal of the Secretary of State must be allowed.

P R Lane

Vice President