United Kingdom Asylum and Immigration Tribunal

ES (Deportation pending on 2^nd October 2000) Ukraine [2006] UKAIT 00056

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 18^th April 2006

Date Determination notified: 04 July 2006

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Latter Senior Immigration Judge Southern
Between

ES	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr J. Goldberg Q.C. and Mr M. Mullins, counsel instructed by Gillman-Smith Lee solicitors For the Respondent: Mr C. Trent, Home Office Presenting Officer

The transitional provisions associated with the introduction of administrative removal of overstayers (section 10 of the 1999 Act) allow a deportation order to be made after commencement when the decision to make such an order was made before commencement. However, those provisions are intended to deal only with process that was pending in that sense at commencement on 2^nd October 2000. They should not be read as preventing section 10 from ever applying to a person if a deportation decision has been made against him before that date.

DETERMINATION AND REASONS

1. This is the reconsideration of an appeal against a decision of the respondent made on 25^th January 2005 to refuse to revoke a deportation order made against the appellant. The appeal was heard by an immigration judge, Mr R. A. Britton, on 24^th November 2005. The appeal was dismissed on human rights grounds as well as under the immigration rules. Reconsideration was ordered on 12^th January 2006.

2. At the end of the hearing we told the parties that we had found there to be a material error of law by the immigration judge, that we would substitute a fresh decision to allow the appeal and that we would issue a written determination giving our reasons, as we are required to do.

Background and immigration history.

3. The appellant, who was born on 25^th April 1981, is a citizen of Ukraine. Her immigration history, entwined as it is with that of her mother, is somewhat involved but needs to be set out. After her parents' marriage ended in divorce in October 1993 the appellant's mother decided to leave Ukraine and to bring the appellant to the United Kingdom. They arrived on 17^th July 1994 and were granted leave to enter for six months as visitors. By January 1995 the appellant, now fourteen years old, was at school and an application was submitted for her to remain as a student. Her mother applied at the same time for further leave as a visitor. Both applications were refused in June 1995 and in August of that year the appellant and her mother returned to Ukraine.

4. Shortly before returning to Ukraine the appellant's mother had discussed the possibility of marriage with an elderly man for whom she had cooked and cleaned whilst in the United Kingdom. In May 1996 the appellant and her mother returned to the United Kingdom and (despite what we have just recorded) presented themselves as visitors and were again granted leave to enter for six months in that capacity. The appellant's mother married this man the following month and submitted an application for leave to remain as the spouse of a person present and settled here, with her daughter as a dependant to that claim. The application was refused and an appeal to an adjudicator was dismissed, the adjudicator accepting the evidence of the gentleman who had entered into this marriage with the appellant's mother and who told the adjudicator that that they did not live together as man and wife and the marriage was a sham. He said it had been entered into at the request of the appellant's mother with a view to avoiding the need for her to return to Ukraine so that her daughter could remain to pursue her education in the United Kingdom. There is no reason at all to doubt that that was the truth.

5. The appellant celebrated her eighteenth birthday on 25^th April 1999. On 6^th August 1999 the appellant was served with notice of a decision to make a deportation order against her, as was her mother. The appellant was a person liable to deportation pursuant to section 3(5)(a) of the Immigration Act 1971 because, having been granted only a limited leave to enter for six months, she remained beyond the time limited by the leave.

6. In October 1999 the appellant commenced a four year degree course at Exeter College Oxford, reading modern languages. We need to say a little more about this. She was partly supported by a scholarship from Lincoln Cathedral, which was paid to her, we understand, for all four years. The course itself, however, lasts only three years. The third year of four is a year in which students have no course at the university, but are free to pursue whatever activity they choose. Many go to a country where the language they are studying is spoken. The appellant chose instead to stay in the United Kingdom, working illegally. We do not know the basis upon which her scholarship was paid to her in that year. We also do not know to what extent the authorities at Exeter College were fully aware of her status. We were told at the hearing that the appellant's tutor, her solicitor and the sub-Dean of Lincoln were fully in the know. We make no finding about that as we have not heard from them.

7. The appellant did not appeal against the decision to make a deportation order. Her mother did appeal but that appeal, which could be brought only in respect of the lawfulness of the decision and not on its merits, was dismissed on 7^th March 2000.

8. On 27^th October 2000 the appellant submitted an application for the grant of exceptional leave outside the immigration rules. She said that she made the application on two grounds. First, she wished to remain to complete her studies at Exeter College. Second, she said that as a result of having lived in the vicinity of Chernobyl she was exposed to radiation and medical evidence suggested she might have a problem with her thyroid gland in respect of which she wished to remain for medical treatment.

9. On 2^nd February 2002 the appellant was served with notice of refusal of that application. On the same date the appellant was served with the deportation order, which had been signed on 13^th December 2001. It was in the usual terms, requiring her to leave the United Kingdom. The appellant appears to have taken no notice of it.

10. A year later, on 20^th February 2003, the appellant's solicitors submitted a human rights claim on her behalf. Her mother had also made such a claim. The claims were treated as applications for revocation of the deportation orders which had, by now, been made against both of them. Her mother's appeal against refusal was dismissed on 4^th March 2004. This, as we shall see, has a considerable significance because the Secretary of State had undertaken that, in order to protect the family life which the Secretary of State recognised as existing between the appellant and her mother, the appellant would not be removed until any appeal rights of her mother had been exhausted. Her mother's application to the Immigration Appeal Tribunal for leave to appeal was unsuccessful and so her appeal rights came to an end on 17^th June 2004.

11. As mentioned at the beginning of this determination, notice of the respondent's decision to refuse to revoke the deportation order served upon the appellant is dated 25^th January 2005. Her appeal against that decision was dismissed by an immigration judge following a hearing on 24^th November 2005. It is in respect of that decision that reconsideration has been ordered.

The reasons given by the Respondent for refusing to revoke the deportation order.

12. The reasons given by the respondent for refusing to revoke the deportation order are those set out in the Home Office letter dated 25^th January 2005. After reviewing the immigration history the respondent summarised the grounds upon which the appellant had sought revocation of the order. It was claimed it would be a breach of article 8 for the appellant to be removed while her mother had an outstanding human rights appeal. Also, the appellant was now a student at university. The costs of her studies were being met by benefactors at considerable expense, more than £30,000. As the appellant would soon be taking her final examinations to interrupt those studies now would be unconscionable, cruel and inhuman.

13. The appeal of the appellant's mother had been heard on 4^th March 2004. The adjudicator dismissed the appeal but noted in his determination that by then it was this appellant, the daughter of the appellant he was dealing with, who had an outstanding appeal.

14. The respondent said in that letter that as the appeal rights of her mother had now been exhausted there would be no breach of article 8 because the appellant would be removed together with her mother. In any event, it was observed that the appellant was now twenty four years old and so was an adult and no longer a dependant of her mother. She had been living away from her mother while at university and had established her own life.

15. The respondent noted that the appellant had now completed her degree course at Oxford University. There had been a ministerial undertaking that the appellant would not be removed while her mother's appeal was outstanding but as those appeal rights were now exhausted there was nothing to prevent both the appellant and her mother from being removed. For these reasons the respondent had decided to refuse to revoke the deportation order. With that letter was enclosed a formal notice of that decision, also dated 25^th January 2005, in which the appeal rights available to the appellant were set out.

The grounds of appeal.

16. There were five grounds of appeal. These were that:

a. the decision was not in accordance with the law and the immigration rules;

b. removal of the appellant would infringe the appellant's rights under the 1950 Convention;

c. discretion under paragraph 390 of HC395 should have been exercised differently;

d. no or insufficient weight had been given to the considerations set out in paragraph 364 of the immigration rules;

e. the deportation of the appellant would not be conducive to the public good.

The hearing before the immigration judge .

17. The appeal came before an immigration judge on 13^th December 2005. He had regard to the bundle of documents submitted on behalf of the appellant. He heard oral evidence from the appellant and received submissions from the representatives. Mr Goldberg's submissions to the immigration judge were apparently similar to those he pursued before us. He referred to a wide range of letters of support for the appellant from a number of well known and influential people, some of whom had actually met her. He reminded the immigration judge that the appellant had received no public funding other than, perhaps, that she had attended a "down at heel" comprehensive school to which she brought the honour of her achievement of being their first student to gain a place at Oxford University. She had lost contact with those relatives she had in Ukraine. Most of those relatives have moved to Russia.

18. Mr Goldberg emphasised that much had changed since the decision to make a deportation order was taken in 1999. He described the appellant's achievements. She had excelled at Oxford. She had been prominent in the Oxford University Conservative Society. She had been involved with the debating Society, with the dancesport team and with the naval unit at Oxford. She hoped to follow a career as an intelligence officer with the Royal Navy. She had excelled also in music, being an accomplished pianist. He took the immigration judge through letters of reference provided by the Oxford Radcliffe Hospital where she had worked as a personal assistant and had made a significant contribution to the efficient running of clinics.

The approach of the immigration judge to the applicable immigration rules.

19. The decision under appeal was that of the respondent to refuse to revoke the deportation order and not the decision to make the order. This is important as different considerations apply. The immigration judge, although referring to paragraphs 390 – 392, appears to have been concerned more with a consideration of paragraph 364. In view of the way in which the appeal was argued before him this is, perhaps, not entirely surprising.

20. Paragraph 364 is concerned with the striking of a balance between the competing interests in play:

"364. Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i) age;
(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."

21. When dealing with an application to revoke a deportation order, paragraph 390 requires that:

"390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an

effective immigration control;

(iv) the interests of the applicant, including any compassionate

circumstances."

But the focus of the consideration is made clear by paragraph 391 which provides (emphasis added):

"391. In the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the court which made the recommendation or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. However, save in the most exceptional circumstances, the Secretary of State will not revoke the order unless the person has been absent from the United Kingdom for a period of at least 3 years since it was made.

22. Thus, paragraph 391 is concerned not simply with a review of the original decision to make a deportation order, unchallenged as it was by this appellant at the time, but with whether, in view of what has occurred since the making of the order, there can be found to be the most exceptional circumstances such as to warrant the revocation of the order. It is far from clear that the immigration judge had this in mind in reaching his decision. At paragraph 55 of the determination he said this:

"There are compassionate circumstances, as set out above in the appellant's case, as in many appeals faced by the Tribunal everyday. I do not consider the appellant's circumstances are exceptional. They do not outweigh the public interest in having a fair but firm immigration policy. This is not a case that is different from many others. I find that there is no insurmountable obstacle to the appellant returning to the Ukraine as her father lives there, and she has some contact with him. I do not find it unreasonable in the circumstances of this appeal. She speaks the language and it is likely that her mother will also be returning to the Ukraine."

23. We are satisfied that the approach of the immigration judge was wrong. It is clear, from a reading of the determination as a whole, that he was carrying out a review of the original decision based upon a consideration of the issues set out in paragraph 364 and that he did not have proper regard to the correct approach as set out in paragraph 391.

24. Mr Trent argued that this error of law was not material because the error favoured the appellant. If the immigration judge dismissed her appeal on the basis of carrying out a balancing exercise having regard to the factors set out in paragraph 364 then he could not have allowed the appeal if he had adopted the correct approach of paragraph 391 as that required him to find the "most exceptional circumstances" such as to warrant revocation before he could have allowed the appeal. We do not agree. We cannot be confident that had the immigration judge adopted the correct approach and not been distracted by an examination of matters that were not directly relevant to his decision that he would necessarily have come to the same conclusions. We find that the immigration judge did make a material error of law and so we must substitute a fresh decision to allow or dismiss the appeal.

Consideration of the Issues

25. The decision to make a deportation order was made on 6^th August 1999, just less than four months after the appellant's eighteenth birthday. Paragraph 390 of the immigration rules requires that the application for revocation be considered in the light of the grounds upon which the order was made. Those grounds included that it was necessary in the public interest that the appellant be removed from the United Kingdom. The appellant's mother, in respect of whom a decision to make a deportation order was made also, had appealed against that decision but her appeal was dismissed by a determination promulgated on 2^nd March 2000. During the following seven months there was nothing to prevent the respondent from taking steps to secure the removal of the appellant, and her mother, from the United Kingdom but no such steps were taken. The appellant has, throughout, been complying with the respondent's instructions to report each month at an agreed reporting point while she remained in the United Kingdom although, of course, not with his instruction to leave the United Kingdom.

26. On 20^th March 2003 the appellant's mother submitted an appeal on human rights grounds. We were told by Mr Trent that a Minister had given an undertaking that the appellant would not be removed until the appeal rights of her mother had been exhausted. Taking together this commitment and the failure to act between March and October 2000 when there was no impediment to the respondent removing the appellant we are satisfied that, in fact, despite having served notice of an intention to make a deportation order in August 1999 at that time the respondent had no intention whatsoever of acting upon it in the foreseeable future. This finding is crucial to our decision.

27. The consequence of the respondent's studied delay was to allow the appellant to make very good use indeed of her time. Having done very well in her A level examinations the appellant secured a place at Exeter College, Oxford to read modern languages. The offer was conditional only upon funding. We do not know to what extent the admissions tutor of the College was aware that the appellant was not entitled to be in the United Kingdom to pursue the course. As overseas fees were to be charged, the College clearly had notice that she was a person who required immigration leave. The fees were beyond the resources of the appellant and her mother but an anonymous benefactor came forward and has provided something in the region of £30,000 to meet these costs.

28. In his skeleton argument, at paragraph 6, Mr Goldberg summarised some of the appellant's achievements:

"She has taught herself perfect English despite speaking none when she arrived. She has proved herself in all respects a model citizen and a passionate and patriotic Anglophile. She has obtained a Class 2.1 degree from Oxford University funded by scholarships and private charitable donations from within this country including Lincoln Cathedral. She has excelled in many fields, notably the Oxford University Royal Naval Unit, the University Dancesport team, the Oxford Conservative Association and she founded the Oxford University Ukrainian Society. She is a valued administrator at the John Radcliffe Hospital in Oxford where she has important responsibilities in organising cancer clinics. She gives tutorials part-time for the University in the Ukrainian language."

29. It is clear to us that in many ways those submissions, like those made to the immigration judge, greatly overstate the case. The allegation of her being a "model citizen and a passionate and patriotic Anglophile" has to be taken in the context of her not being a citizen of the United Kingdom and having chosen, for the whole of her adult life, to defy United Kingdom immigration law, including the rules against her working. Her acquisition of a 2.1 degree has to be taken in the context of the fact that her studies were in languages which to her were native or nearly so. The scholarship from Lincoln Cathedral is a matter on which we have commented earlier in this determination. We do not know the detail of her work at the Radcliffe Hospital: we understand that she is in essence a secretary or PA and is apparently working there illegally. When the issue was raised at the hearing it was not suggested that she has any permission or right to work. The assertion made to the immigration judge that the appellant is an accomplished pianist was made to us in the form that she is a "concert pianist". Inquiry showed that the assertion was based solely on the fact that she has passed grade 8 piano. Her hope "to follow a career as an intelligence officer in the Royal Navy" asserted to the immigration judge and orally to us, appears to be entirely unrealistic.

30. Since the hearing it has also come to our notice that her claim to be the first person from her school to have gone on to Oxford University is apparently false: The Times, 16^th June 2006, contains an apology to the school for printing it.

31. Mr Goldberg referred also to a collection of letters written in support of the appellant's case by a number of well known and influential people. We do not find these to be particularly helpful and do not attach very much weight to them. It appears that most of their authors are not known to the appellant but have been approached on her behalf with a request for their support. It is not possible to know what these people were told of the appellant's case, whether what they were told was true, or whether they had any basis at all for expressing a view relevant to these proceedings. It is difficult to see how these assist the appellant. The importance of maintaining the integrity of the immigration rules is a matter of the highest importance. It cannot be accepted that the requirements of the rules should be waived simply because an appellant has access to a large number of well known people who have been persuaded by the information given to them, whatever that might have been, to express views in the appellant's favour.

32. We consider, then, whether the appellant's situation is materially different, either because of a change in her circumstances since the deportation order was made or because of the fresh information which could not have been before the respondent in August 1999 when the decision to make a deportation order was made. Paragraph 391 acknowledges that the passage of time might itself be a significant factor. The question, though, is whether all this amounts to the most exceptional circumstances that need to be established before revocation is warranted.

33. We are satisfied that the passage of time arising from the failure of the respondent to act upon the deportation order has led to a change in the circumstances of the appellant that can properly be regarded as exceptional. The position of the appellant becomes most exceptional when her circumstances are considered in the light of the failure of the respondent to consider any mechanism for removal other than by acting upon the deportation order.

34. A person removed from the United Kingdom by means of a deportation order will, normally, be prevented from returning to the United Kingdom for a period of three years. This is of particular significance in this case for the following reason. At the time of the original decision to remove the appellant and her mother, because both had overstayed leave granted to them, the decision to make a deportation order was the appropriate mechanism. By October 2000 Parliament had resolved that removal by deportation order should be retained for use in respect of those who had been recommended for deportation following conviction in the criminal courts and for those whose deportation was deemed by the Secretary of State to be conducive to the public good and members of their families. For those in the appellant's position, who had overstayed leave, removal was to be effected administratively by the procedure of section 10 of the Immigration and Asylum Act 1999. The significant benefit to those in respect of whom that procedure was used was that there was nothing to prevent them from making an immediate application for leave to return under the rules assuming, of course, that they met the requirements of the particular rule under which they sought to return.

35. As there was no intention to take any step at all to secure the appellant's removal until after October 2000 we are satisfied that the Secretary of State ought to have given, at the date of the decision on 25^th January 2005, substantive consideration to the question whether deportation remained the appropriate course of action in her case. This question does, in fact, raise formidable questions of statutory interpretation. As we have said, deportation for overstayers ceased on 2^nd October 2000. It is the transitional provisions that cause the difficulty.

36. The first issue is whether the respondent had any power after 2nd October 2000 to make a deportation order on the grounds of overstaying. We sought assistance on this issue from Mr Trent, who after the hearing (with our permission) made written submissions referring in substance only to the explanatory notes to the commencement provisions of the Immigration and Asylum Act 1999. We must look into the matter more deeply.

37. The liability to deportation is and was found in section 3(5) of the Immigration Act 1971. Paragraphs 43-44 of Schedule 14 to the 1999 Act substituted a new version of that section, omitting the effect on overstayers, whose liability to deportation thereupon vanished. The substituted section 3(5) came into force on 2nd October 2000 by virtue of the Immigration and Asylum Act 1999 (Commencement No. 6, Transitional and Consequential Provisions) Order 2000 (SI 2000/2444). The Order contains in its Second Schedule transitional provisions relevant to section 3(5) of the 1971 Act and section 10 of the 1999 Act (which gives the new power to issue directions for the removal of an overstayer) as follows:

Transitional provisions relating to the 1999 Act
1.  - (1) In this paragraph, a reference to a section or to a Schedule is to be read as a reference to a section of, or to a Schedule to, the 1999 Act, unless otherwise specified.

(2) Section 10 (removal of certain persons unlawfully in the United Kingdom) is not to have effect in relation to -

(a) any person on whom the Secretary of State has, before 2nd October 2000, served a notice of his intention to make a deportation order; …..

Transitional provisions relating to the appeals provisions of the 1971 Act

2(3) Section 5 (procedure for, and further provisions as to, deportation) is to continue to have effect in relation to –

(a) any person on whom the Secretary of State has, before 2nd October 2000, served a notice of his decision to make a deportation order; ……..

38. This makes it clear that the powers for making the deportation order (under section 5 of the 1971 Act) continued to be available to the respondent as a result of the decision he made before 2nd October 2000. The deportation order itself is, therefore, clearly lawful.

39. The question then is whether, if it were revoked, the respondent would have any power to issue removal directions under section 10 of the 1999 Act against the appellant. Paragraph 1(2)(a) of the Schedule to the Commencement Order would suggest not, and paragraph 2(3) of the same Order would suggest that deportation would continue to be available in her case. That interpretation would be based on the assumption that a historic decision to make a deportation order forever singled out an individual as continuing to be subject to the deportation provisions of the 1971 Act before their amendment.

40. We do not think that can be right. If it were, a person who had once been the subject of a pre-2000 decision to make a deportation order against him as an overstayer would forever be subject to the pre-2000 law, even if the decision had been withdrawn, set aside on appeal, not proceeded with, or even resulted in a deportation order that had been enforced, and, years later, revoked. The true position must be that that these transitional provisions are intended to be transitional and not permanent: they enable the continuance of any deportation process begun before 2000 but are not intended to determine the immigration law applicable to people who happen to have been the subject of continuing process on 2^nd October 2000 when fresh immigration decisions are taken after that date.

41. We have therefore reached the view that, if the deportation order were revoked, it would be open to the Secretary of State to give directions for the appellant's removal as an overstayer.

42. For that reason we have concluded that the exceptional circumstances and history of this case are such that the proper decision would have been to revoke, rather than maintaining, the deportation order in January 2005. We shall therefore allow this appeal on the grounds that the discretion to revoke the deportation order should have been exercised differently.

43. We emphasise that we do not suggest that the appellant has, or ought to have, any right to remain here. It may well be that there are ample grounds for removing her. Further, it should be emphasised that our decision does not give the appellant leave to remain and we should not be taken to imply that she should have leave. What we do say is that in her case removing her by way of deportation is not appropriate. For that reason only, having found that the immigration judge materially erred in law, we substitute a determination allowing this appeal.

Signed Date

Senior Immigration Judge Southern