Ahmad and Others (removal of children over 18)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Collins,Coker UTJ,Collins J,Coker |
| Judgment Date | 28 July 2012 |
| Neutral Citation | [2012] UKUT 267 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 July 2012 |
[2012] UKUT 267 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Collins
Upper Tribunal Judge Coker
For the Appellant: Mr Ronan Toal, Counsel, instructed by Wilson Solicitors
For the Respondent: Mr David Blundell & Mr Andrew Byass, Counsel, instructed by Treasury solicitors
Ahmad and others (removal of children over 18)
There is no power under the provisions of section 10(1)(c) of the Immigration and Asylum Act 1999 to remove children who are over the age of 18 years as the family members of an adult being removed under section 10(1)(b) of that Act.
The appellants in these appeals are from four families. They raise common issues and have therefore been listed together. All four families (the principals of which Qadir Ahmed AA/08841/2008, Noreen Shakila Bi AA/08855/2008, Rungzaib Mohammed AA/08846/2008 and Mehmood Ahmed AA/01519/2009) are Pakistani citizens and inter-related either by blood or marriage or both. The family members not the subject of this determination also have appeals outstanding before the Upper Tribunal.
Each family obtained visit entry clearances in 2000 or 2001 as Pakistani nationals applying through the High Commissioner in Islamabad. Having arrived in this country, each family claimed asylum on the basis that they were Indian nationals giving names, dates of birth and histories which differed from what had been presented to obtain the entry clearances. In particular, each family alleged that the parent was single and his or her spouse had been murdered by the Indian army. They all have associated family members including a number of children some of whom were dependants upon the asylum claims of the principal appellants and were granted ‘derivative’ refugee status and indefinite leave to remain on that basis; other family members are failed asylum seekers and their dependants.
All the parents then engaged in fraudulent activities and were arrested in July 2004. They were charged with conspiracy to contravene section 25 of the Immigration Act 1971 and conspiracy to defraud by obtaining benefits to which they were not entitled. The immigration offences involved obtaining leave to enter by deception. All pleaded guilty. The grants of refugee status and indefinite leave to remain, where granted, were rescinded against all family members.
The Secretary of State served decisions to remove under the provisions of section 10 Immigration and Asylum Act 1999 on all the family members, including those who are not considered in this appeal. All the family members appealed; the Secretary of State conceded they had an in country right of appeal and all the appeals came to be heard together before a First-tier Tribunal (IAC) panel of Judge Renton and Judge Forrester between 7 th and 22 nd December 2009. At that hearing it was conceded:
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i. that all the appellants were Pakistani nationals and would not be at risk of persecution or serious harm on their return to Pakistan;
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ii. they were not entitled to refugee status or humanitarian protection;
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iii. the Secretary of State was entitled to cancel the grant of refugee status where it had been granted including those with ‘derivative’ status.
The appeals of all the family members were dismissed by the First-tier Tribunal. Permission to appeal was granted on 23 rd April 2010 on all grounds submitted namely:
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i. It is arguable that the Tribunal erred in law by failing to allow the appeals of those aged over 18 at the date of decision on the grounds that the decisions were not in accordance with the immigration rules and/or failing to allow the appeals on the grounds that the decisions were not in accordance with the law owing to the Secretary of State's failure to give effect to his policy as to how he would exercise his powers under section 10(1)(c) and/or failing to allow the appeals because they were not the spouses or partners or children under the age of 18 of a person in respect of whom removal directions under section 10 had been made and there was therefore no power in law to make those immigration decisions.
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ii. It is arguable that the Tribunal erred in law in relation to those appellants nearing the age of 18 at the date of decision the decision was not in accordance with the law because it was made without regard to policy contained in Chapter 50 of the Enforcement Instructions and Guidance with regard to the exercise of the power under section 10(1)(c).
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iii. It is arguable that the Tribunal erred in law in reaching its conclusion that the nature and consequences of the deception practised were of such gravity as to operate against the presumption not to remove families where the children have been in the UK for 7+ years, wrongly treated all appellants as parties to the deception, irrationally excluded the benefit of DP5/96 and Article 8, erred in its assessment of the individual culpability of each appellant, failed to make proper assessment of the trafficking submission.
The Secretary of State filed a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Directions given by Judge Latter on 13 March 2012 included a direction that an initial hearing will be listed for hearing to consider as a preliminary issue:–
“Whether there is power in law to remove children who are over the age of 18 under the provisions of section 10(1)(c) of the Immigration and Asylum Act 1999 as family members of an adult being removed under section 10(1)(b).”
All other matters were to be listed after determination of this issue.
It was agreed before us that we would determine whether there was an error of law in the First-tier Tribunal's decision with regard to those appellants with leave to remain in the UK who were over the age of 18 on the date of decision; if so we would remake the decision.
It was agreed between the parties that the individuals with whom we were concerned were as follows: Tousif Ahmad AA/08844/2008, Jehan Mohammed AA/08847/2008, Ishrut Begum AA/08849/2008, Mohammed Atif AA/08853/2008, Mobushra Begum AA/08852/2008 and Furah Begum AA/08856/2008.
The remaining grounds upon which permission to appeal the decision relating to all the other family members had been granted would be separately listed for a hearing before the Upper Tribunal after promulgation of our decision with regard to these 6 appellants.
In each case, removal directions were given under section 10 of the Immigration and Asylum Act 1999 (the 1999 Act). This provides, under the heading “Removal of certain persons unlawfully in the United Kingdom”, so far as material:–
“(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if
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(b) he uses deception in seeking (whether successfully or not) leave to remain;
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(c) directions have been given for the removal, under this section, of a person to whose family he belongs
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(5A) Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the person whose removal under subsection (1)(a) or (b) is the cause of the directions under subsection (1)(c) …..”
(7) In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the Immigration Act 1971 (administrative provisions as to control or entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.
(8) Where a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.”
Subsection (1)(a) covers overstayers and those who have breached a condition of their leave and subsection (1)(ba) covers those whose indefinite leave to enter or remain has been revoked because they have ceased to be refugees.
The issue we have to determine is whether the sons and daughters who have had removal directions under section 10(1)(c) and who were over 18 are to be regarded as belonging to the family of the parents whose removal has been directed under section 10(1)(b). This depends on whether “family” within the meaning of section 10(1)(c) should be limited so that only children under 18 fall within the subsection.
It is necessary to consider the legislative history since there have been a number of Acts which have dealt with deportation and administrative removal. In its original form, the Immigration Act 1971 provided by section 3(5) as follows:–
“A person who is not a patrial [now a British Citizen] shall be liable to deportation from the United Kingdom –
(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or
(b) if the Secretary of State deems his deportation to be conducive to the public good; and
(c) if another person to whose family he belongs is or has been ordered to be deported.”
A decision to make a deportation order attracted an in-country right of appeal. The Asylum and Immigration Act 1996 added a subsection (5)(aa) which provided as a further ground for deportation:
“if he has obtained leave to remain by deception.”
The addition in section 3(5)(aa) was limited to those who had obtained leave to remain by deception since those who obtained leave to enter by deception were illegal entrants. Illegal entrants are defined in section 33(1) of the 1971 Act (as amended by the...
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