Campbell (exclusion; Zambrano)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey |
| Judgment Date | 16 January 2013 |
| Neutral Citation | [2013] UKUT 147 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 January 2013 |
[2013] UKUT 147 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Jordan
For the Appellant: Mr D Chirico, Counsel instructed by Wilson Solicitors LLP
For the Respondent: Mr T Melvin, Home Office Presenting Officer
Campbell (exclusion; Zambrano)
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1. Exclusion decisions are not be confused with exclusion orders.
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2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v Secretary of State for the Home Department [2011] EWCA Civ 14 and there is nothing unlawful in such a decision being made after a claimant has made a voluntary departure from the UK.
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3. There is no reason in principle why Zambrano principles ( Zambrano v Office National de l'Emploi (ONEm) [2011] All ER (EC) 4) cannot have application in entry clearance cases: in both in-country and out-of-country cases the Member State must ensure that any “refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of thesubstance of the rights conferred by virtue of his status as a citizen of the Union”:Dereci & Others (European citizenship) [2011] EUECJ C-256/11, 15 November 2011, para 74.
The appellant is a citizen of Jamaica. On 3 September 2010 First-tier Tribunal (FtT) Judge B A Morris dismissed his appeal against the decision made by the respondent on 3 February 2010 to refuse his application for entry clearance to join his spouse, (Susan Campbell whom he had married in Jamaica on 19 September 2008) in the UK for settlement. The sole ground of refusal was stated to be that, by virtue of the fact that the appellant was “subject to an exclusion order where the Secretary of State on 18 th September 2008 had personally directed that his exclusion was conducive to the public good”, he stood to be refused under paragraph 320(6) of the Immigration Rules which states that entry clearance is to be refused “where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good”. It is as well to clarify at this point that the reference in the ECO decision to an “exclusion order” was incorrect. As is made clear in the UKBA document “Exclusion decisions and exclusion orders” v1.0 valid from 5 July 2012, “exclusion orders” refer to decisions made under regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006, whereas “exclusion decisions” are made by the Secretary of State against non-EEA nationals in the exercise of her extra-statutory power preserved by s.33(5) of the Immigration Act 1971 (we leave aside her special provisions for persons coming from the Common Travel Area). It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v Secretary of State for the Home Department [2011] EWCA Civ 14. Exclusion is also one of the “…grounds of public good” identified in s.98 of the Nationality, Immigration and Asylum Act 2002.
The background to the appellant's application for entry clearance was that he had previously been in the UK, having first entered in September 2001 on a visit visa. From 25 September 2001 he became an overstayer. On 27 March 2008 he was arrested on suspicion of using a false document and on 20 May 2008 he was charged with possession of a false identity with intent, contrary to s25(1) of the Identity Cards Act 2006. He pleaded guilty and was sentenced to seven months' imprisonment, the sentencing judge recommending that he be deported and the respondent set in train proceedings to deport him. Having signed a form on 12 July 2008 waiving his appeal rights against deportation, he was considered for a “Facilitated Return”. On 23 July 2008 the section of the Criminal Case Directorate dealing with the Facilitated Returns Scheme wrote to him to say that it had been decided to allow him to return to Jamaica under this scheme. This letter noted that “[y]ou will not be deported but the Home Office will consider whether you should be excluded from the UK. Should you be excluded from returning to the UK you can apply to have this revoked [at] any time”. On 1 September 2008 the appellant made a voluntary departure. Subsequently (when back in Jamaica) he learnt that the Secretary of State had personally directed that he should be excluded from the UK on the ground that his presence would not be conducive to the public good for reasons of criminality, specifically his criminal conviction for being knowingly involved in possession and use of a false instrument and that as a consequence he should not attempt to enter the UK. It is not entirely clear when the appellant was first notified of this, but from the letter sent by his then representatives, IAS, dated 2 October 2010 it is at least clear that he had been informed of it by January 2009 when he had been in contact with ECO, Kingston; this accords with his own evidence of having received a refusal of entry clearance prior to the one under appeal.
Following a grant of permission to appeal to the Upper Tribunal, an Upper Tribunal panel (Mr Justice Coulson and Upper Tribunal Judge Storey) decided that the FtT had materially erred in law, and set aside its decision: see Annex for this decision in full. In essence the errors identified related to the judge's failure, when considering the appellant's Article 8 circumstances, (i) to make an assessment of whether it was reasonable to expect the appellant's wife and daughter, K, to go and live with him in Jamaica; (ii) to make a proper assessment of the best interests of the children with whom the appellant had some involvement; and (iii) to assess and weigh in the balance the likelihood that the appellant would re-offend.
We should note that in the course of its error of law decision the Upper Tribunal panel rejected an attempt by the appellant's Counsel on that occasion (Ms Hooper) to persuade it that the FtT had also erred in law in failing to consider whether the prior decision of the SSHD to exclude the appellant from the UK was “in accordance with the law” because of the circumstances in which he left the UK. We set out here what the Upper Tribunal panel said about this matter at paras 8–9:
“8. Having heard both parties' submissions we are satisfied for a number of reasons that the scope of this appeal must be confined to Article 8. In the first place, the appellant has had ample opportunity since 26 August 2008 — when he was served with a letter informing him in writing by the Home Office that the Home Secretary had personally directed that he should be excluded — to challenge that decision by way of judicial review. He failed to do so. Secondly, the grounds appear to rely in part on a misunderstanding of the status of an exclusion decision. They refer to the lack of evidence of the Secretary of State having made an ‘exclusion order’, but to our understanding exclusion is a non-statutory power exercised by the Home Secretary acting in person to prohibit entry to the UK in respect of certain categories of person, including foreign national prisoners who have taken up the offer of assistance as part of the facilitated returns scheme. Such a decision does not need to be made in the form of an order; it can be made simply by way of a letter, as was done in this case. Thirdly, the grounds appear to consider that the exclusion decision was unlawful because, having been warned that he might be deported, the appellant in fact left voluntarily. Leaving aside that it would appear that the appellant's departure was not wholly voluntary (Mr Melvin's skeleton argument describes it as having been an escorted departure), it is apparent that exclusion is a different process from deportation and that leaving voluntarily is no bar to an exclusion decision.
9. Thirdly, now that we have a fuller picture of the appellant's immigration history, we see no proper basis for considering a ground of appeal that the appellant himself, after his legal representative had been granted a brief adjournment to consider the matter, no longer wished to advance before the FTT (it was not a ground, in any event, that formed part of the written grounds of appeal to the FTT). Fourthly, it is entirely clear that the appellant was aware of the threat, if not the fact, of an exclusion decision, when he signed a form dated 12 July 2008 stating that he intended to leave the UK and did not wish to exercise any rights of appeal. Ms Hooper did not suggest that it was not the appellant's signature on this form. It is true that this pro forma form made reference to withdrawal of a right of appeal against ‘deportation’, but he cannot have been in any doubt that he was waiving rights of statutory appeal against any aspect of the removal process. It is also true that he did not tick the further box which stated ‘I understand that I may be excluded from the United Kingdom following my departure’, but it remains the fact that the form contained this warning and the fact that he did not tick this box does not alter the fact that he must have read the letter. Further and in any event, (and this brings us back to our first point) he did not have any right of appeal against an exclusion decision although, as he was subsequently informed of that prior to his removal (on 26 August 2008), he was clearly in a position prior to departure to exercise a judicial review challenge.”
Mr Chirico said that he did not intend to call any witnesses but would rely on the further witness statements from both the appellant and his wife and, in relation to the issue of the exclusion decision, the DPU file produced by the respondent in response to a subject access...
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