United Kingdom Asylum and Immigration Tribunal

VA (Formerly exempt persons: leave) Ghana [2007] UKAIT 00091

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing:

Date Determination notified: 27 October 2007

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge McGeachy

Between

VA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms C Boaitey, instructed by Welbeck Anin Solicitors For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS

A person who is treated as having been given leave by virtue of s8A(2) of the 1971 Act is not thereby a person who has leave "given in accordance with any of the provisions of these Rules" for the purposes of paragraph 284(i) of HC 395.

1. The appellant, a citizen of Ghana, applied to the Secretary of State for leave to remain in the United Kingdom as the wife of a man present and settled here. The respondent refused her application. The appellant appealed to the Tribunal. An Immigration Judge dismissed her appeal. She then sought and obtained an order for reconsideration. Thus the matter comes before us.
2. The appellant entered the United Kingdom as the holder of a multiple entry visa showing her exemption from immigration control as the dependant of a member of the staff of a diplomatic service. That visa expired on 23 November 2006 and it has been assumed for the purposes of the appellant's application and appeal that it was on that date that she ceased to be exempt from immigration control, although as Mr Deller pointed out, it may be that her exemption, which is not derived from the visa itself, ceased at an earlier date. She married her husband on 23 September 2006.
3. Section 8 of the Immigration Act 1971 is entitled "Exceptions for seamen, aircrews and other special cases", and subsection (3) provides that the provisions of the 1971 Act relating to those who are not British citizens "shall not apply to any persons so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of a family and forms part of the household of such a member, or a person otherwise entitled to be like immunity from jurisdiction as is conferred by that Act on a diplomatic agent". Section 8A is as follows:

"8A. Persons ceasing to be exempt.

(1) A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8(2) or (3).

(2) If a person who is exempt –

(a) ceases to be exempt, and

(b) requires leave to enter or remain in the United Kingdom as a result, he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt.

(3) If –

(a) a person who is exempt ceases to be exempt, and

(b) there is in force in respect of him leave for him to enter or remain in the United Kingdom which expires before the end of the period mentioned in subsection (2), his leave is to be treated as expiring at the end of that period."

4. The appellant's application for leave to remain was signed by her on 10 November 2006. According to the grounds it was made on 6 December: the respondent's date stamp is 7 December 2006. The application fell for consideration under paragraph 284 of the Statement of Changes in Immigration Rules, HC 395. One of the requirements which the appellant has to meet in order to be granted an extension of stay as a spouse is the following:

"284. The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that:

(i) the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules other than where as a result of that leave he would not have been in the United Kingdom beyond 6 months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these Rules, unless the leave in question is limited leave to enter as a fiancé or proposed civil partner; and … ."

5. The ground for refusal given in the Secretary of State's notice of refusal is stated as follows:

"However, the Immigration Rules direct that a person seeking such leave is to be refused if they do not meet the requirements set out in the Immigration Rules … . This includes that the applicant has limited leave to remain in the United Kingdom other than where that leave is of 6 months' duration or less. Therefore you do not meet the requirements of having limited leave for a period of more than 6 months in the United Kingdom."

6. That reason misstates the effect of the Immigration Rules and is not applicable to this appellant. The Rules do not require a period of six months leave. They require a period of leave which is not so short that the time between the last entry to the United Kingdom in accordance with the Rules and the expiry of the leave is less than six months. The appellant has never entered the United Kingdom in accordance with the Immigration Rules, because at her last entry she was still exempt. That particular provision of paragraph 284(i) therefore does not exclude her. It was clear both before the Immigration Judge and before us that the appellant's problem is a different one. Her difficulty is in showing that the leave she has is, in the words of paragraph 284(i), leave "which was given in accordance with any of the provisions of [the Immigration] Rules". There is no provision in the Rules for the grant of leave to a person who ceases to have the exemption granted by s8(3). Such a person's position is governed by s8A, and we note that, on its terms, even s8A(2)(b) does not give leave as such: it merely requires a person to be treated as though leave had been given.
7. A person in the appellant's position is accordingly to be treated as a person with leave for 90 days, during which, evidently, the person is not remaining without leave. During that period a person who is a beneficiary of s8A(2)(b) is entitled to make any appropriate application, which will fall for determination under the Immigration Rules. The advantages flowing from s3C (extension of leave while application or appeal pending) will be available. But both the treatment of the person as having been granted 90 days leave to remain, and any extension under s3C arise entirely outside the Immigration Rules. They arise from the operation of statute.
8. Paragraph 284 has been subject to a number of amendments. The words "which was given in accordance with any of the provisions of these Rules" were inserted by Cm 6339 with effect from 1 October 2004. The evident intention of that insertion was to restrict the availability of leave to remain under paragraph 284. By the insertion of those words, those whose existing leave had been granted outside the Immigration Rules (whether by statute or otherwise) were excluded from the application of paragraph 284. Those who had been admitted as visitors or under the general provisions of paragraph 23A of HC 395 were supposed to have been already excluded by the following words. The purpose of the increasing restrictions on the applicability of paragraph 284 is to prevent "switching" from other immigration categories into that of a spouse.
9. Ms Boaitey argued, with her usual eloquence, that the provisions of s8A(2)(b) were of no assistance to anybody if they did not assist the appellant. We disagree. There are categories of leave into which a person may switch whilst having (or being treated as having) leave granted by statute: it merely happens that leave under paragraph 284 is not one of them. In any event, as we have already said, the grant of leave enables a person to regularise his or her position after ceasing to be exempt, and to make whatever arrangements are necessary, without being in the position of remaining in the United Kingdom without leave. That is certainly a benefit. Ms Boaitey's second principal point was that the leave granted by s8A(2)(b) should be regarded as leave granted under the Immigration Rules for the purposes of paragraph 284. We are unable to accept that submission. As we have indicated, the purpose of the insertions in paragraph 284 is to restrict the types of leave to which it refers, and it is inconceivable in our view that it should have been intended that leave granted other than under the Immigration Rules was intended to be encompassed in the description of leave "which was given in accordance with any of the provisions of these Rules".
10. The Immigration Judge, who was not assisted by the fact that neither party appeared or was represented before him, appears to have taken the view that the appeal was doomed to failure because the appellant's marriage was at a time when she was still exempt, when she could not be regarded as having been "given" leave at all. He was wrong about that: the application fell to be considered on the basis of the subsequent position, when the appellant was, under the provisions of s8A(2)(b), to be treated as having been given leave. But, for the reasons we have given, the appellant could not and cannot meet the requirements of paragraph 284(i). The Immigration Judge's error was therefore immaterial.
11. The Immigration Judge dealt also with human rights. The grounds for review assert that there are insurmountable obstacles to her husband's accompanying her if she is removed. The Senior Immigration Judge who granted reconsideration did not order the reconsideration of the appellant's appeal on human rights grounds. It appears to us that the Immigration Judge's treatment of this issue was entirely adequate on the evidence before him, and discloses no error of law. In any event, no ground at all has been shown why the appellant should not make any appropriate application from abroad.
12. For the foregoing reasons we find that the Immigration Judge made no material error of law. We accordingly order that his determination, dismissing the appeal, shall stand.

C M G OCKELTON

DEPUTY PRESIDENT

Date: