AG and Others (Policies; executive discretions; Tribunal’s powers)

These appeals were listed for reconsideration on the same day and were heard together, with a view to our giving guidance on the question whether, and if so, in what circumstances the Tribunal in entitled or bound to apply policies declared by the Secretary of State. The issue is not untried: but recent experience in the Tribunal suggests that it may need revisiting following the decision of the Court of Appeal in Baig v SSHD [2005] EWCA Civ 1246.

The appellant in the first case, AG, is from Kosovo. He is now therefore presumably a citizen of Serbia. He arrived in the United Kingdom on 5 November 1997. He claimed asylum then. His wife and four children were with him on his arrival and their claims are dependent on his. Within less than two weeks of his arrival Greece agreed to take responsibility for the assessment of his claim, under the Dublin Convention. His application was therefore formally refused on 5 December 1997. He sought judicial review of that decision, unsuccessfully. He then made an application for leave to remain on the grounds that his human rights would be infringed by his removal. When that application was refused, he appealed. The appeal was dismissed and the Immigration Appeal Tribunal refused leave to appeal. He unsuccessfully sought judicial review of the decision to refuse him leave to appeal. He then made further applications for leave to remain in the United Kingdom. The present appeal is against the Secretary of State's decision on 4 July 2006 refusing leave (and repeating the intention to remove him to Greece).

Before the Immigration Judge it was accepted that the appellant could not meet the requirements of the Immigration Rules. The Immigration Judge noted as follows:

“The appellant's claim rests principally on his submission that he and his family meet all the requirements of the Home Office Policy or concession DP5/96 in that his younger child has been resident in the United Kingdom for more than seven years and is still under the age of 18. He also relies on the Convention on the Rights of the Child, to which the United Kingdom is a signatory, which provides among other things, in Article 3, that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration’.”.

The Immigration Judge went on to say that he regarded it as important that all the criteria set out in DP5/96 were considered. In his determination he then purported to consider them and concluded as follows:

“For all the above reasons I have been satisfied on the evidence that the decision of the Secretary of State is contrary to his declared policy DP5/96 and cannot be permitted to stand. The appeal is therefore allowed.”

The appellant in the second case, EB, is a citizen of Jamaica. He came to the United Kingdom as a visitor in December 2000. He was granted leave to remain as a student until 30 September 2002 but has had no subsequent leave. In 2003 he married here and applied for leave to remain as a spouse. That application was refused and it is clear that the appellant has no claim under the Immigration Rules. The decision refusing his application, dated 10 July 2006, refers to the Secretary of State's policy on marriage applications by overstayers, DP3/96, and gives the Secretary of State's reasons for refusing to apply that policy in the appellant's favour. Before the Immigration Judge the appellant's representative asked merely for the decision to be set aside as not in accordance with the law if the Immigration Judge was satisfied that the policy had not been correctly applied. A Presenting Officer appears to have asserted, by some means after the hearing, that a challenge to the Secretary of State's decision in this case had to be by judicial review.

In his determination the Immigration Judge notes that “I have come to the conclusion that both advocates were wrong in their submission”. He refers to s86(3)(b) of the 2002 Act as giving him jurisdiction to allow the appeal if he concludes that the discretion exercised by the respondent should have been exercised differently. He makes no reference to s86(6) (we set out both of these provisions below). The Immigration Judge goes on to refer to Baig “which appears to be authority for the proposition that an Immigration Judge has jurisdiction to consider the policy decision of the Secretary of State and to allow an appeal if that policy has been misapplied.” The Immigration Judge then found as facts that the appellant and his wife were married; that the marriage was genuine and subsisting; that no enforcement action was taken against the appellant in the two years after his marriage; that the appellant's wife had long-standing commitments in this country and that it would be extremely difficult for her emotionally, financially and practically to leave this country and go to Jamaica. He concluded as follows:

“I find therefore that it would be unreasonable to expect her to accompany the appellant to Jamaica. The respondent therefore had no good reason for departing from policy DP3/96.”

He therefore allowed the appeal.

The appellant in the third case, PB, is a national of Bangladesh. She claims to have come to the United Kingdom illegally in the autumn of 1999. She contracted a marriage with a British citizen who, she says, had no interest in having her with him in the United Kingdom. But she is here, and their child, who is said to be a British citizen, is said to have arrived here before her, in September 1999. In March 2000 she submitted an application for leave to remain as the dependant of her brother. It is, we understand, accepted that that application was misleading in that she did not mention her child. The appellant and her husband were divorced in or about 2002. She was awarded a lump sum of £200,000 and maintenance of £250 per calendar month for the child. The present appeal is against a decision on 18 December 2004 to give directions for the appellant's removal from the United Kingdom. She appealed on human rights grounds. But at the hearing before the Immigration Judge it was asserted that the appellant was entitled to the benefit of the Secretary of State's policy DP5/96, because the child had been in the United Kingdom for seven years.

The Immigration Judge's determination poses some challenges for those who, on behalf of the appellant, assert that it is a sound judgment containing no material errors of law. It begins as follows:

• “1. [The appellant appeals] against the decision of the secretary of state dated 27 February 2004 to refuse her application for leave to enter on the grounds that her removal would breach the UK in breach of its obligations under the Human Rights Act 1998 and to refuse her leave to enter the UK.

• 2. In immigration appeals the burden of proof is on the appellant and the standard of proof is the balance of probabilities. The relevant date is the date of decision although I may take into account later evidence where it appertains to the date of decision.”

In the first paragraph the date of the decision and the nature of the decision are misstated; further, the decision as described appears to be a legal impossibility: leave to enter or remain is granted or refused by immigration officers, not by the Secretary of State, save in cases where there has been an asylum or human rights claim, which at that stage there had not (although the decision is said to have been made on human rights grounds). In the second paragraph, the...