Kabaghe (Appeal from Outside UK: Fairness) Malawi
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake |
| Judgment Date | 24 November 2011 |
| Neutral Citation | [2011] UKUT 473 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 November 2011 |
[2011] UKUT 473 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, THE PRESIDENT
UPPER TRIBUNAL JUDGE H Macleman
For the Appellant: No representative
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
Kabaghe (appeal from outside UK — fairness) Malawi
1) A person who has been removed from the United Kingdom pursuant to an immigration decision may not appeal against that decision to the First-tier Tribunal on human rights grounds (except where a human rights/asylum claim has been certified as clearly unfounded.
2) The statutory jurisdiction to consider whether an immigration decision is in accordance with the law includes consideration of whether the decision has been made fairly, because there is a public law duty on the Secretary of State to act fairly.
3) Where an appellant challenges a removal decision on the basis that it is unlawful and unfair, and gives an apparently credible account of the treatment constituting the unfairness, the judge is entitled to expect some form of evidential response from the respondent, identifying what happened and what factors informed the decision making. As the AIT held in EO (Turkey) [2007] UKAIT 00062 , the respondent should demonstrate that the relevant considerations in paragraph 395C of HC 395 were taken into account, in reaching the decision that the appellant should be removed.
This is an appeal from a decision of Judge Place sitting in the First-tier Tribunal Immigration and Asylum Chamber on 27 January 2011. He dismissed the appellant's out of country appeal against a decision to remove her from the United Kingdom made on 4 April, 2010. The judge concluded that no valid grounds of appeal had been placed before him, and in particular the appellant could not lodge an appeal based on human rights grounds once she had been removed from the United Kingdom.
The relevant history is as follows. The appellant is a citizen of Malawi, born in 1954. She arrived in the United Kingdom in March 2006 with a valid student visa issued in Botswana granting her permission to enter and remain in the United Kingdom until February 2008. Her student visa was extended to April 2009 when she made an in time application for an extension of stay in order to study for a Higher Diploma at the Leicester Business Academy. This application was refused in October 2009 for her failure to meet the various requirements of the rule. She appealed on 3 November, 2009. She lodged fresh material, submitting that the educational institute was indeed a registered sponsor and she could maintain herself from her own funds. She did not ask for an oral hearing of that appeal. By s. 3C(2) of the Immigration Act 1971 her leave to remain is extended whilst an appeal is pending, ignoring any possibility of an appeal out of time.
On 30 November 2009 the AIT wrote to the appellant at her last known address, explaining that any written representations in support of the appeal had to be received by 4 January 2010. Thereafter the case was placed before a judge for a paper hearing. He considered the matter and reached his conclusion on 5 February 2010. On the law as he understood it to be, the appellant had not made out her case and he accordingly dismissed the appeal. This decision was promulgated by being sent by 1 st class post on 9 February 2010. Applying the provisions of the Asylum and Immigration Tribunal (Procedure) Rules 2005 any application for reconsideration of the decision and/or appeal to a higher body should have been made by 17 February 2010. No application was made in time for further appeal, consequently the appellant's appeal rights were exhausted on 17 February and from then on she had no leave to remain.
The next material event was that on 4 April 2010 the appellant complained to the local police about loss of money from her address. A check revealed that she had no authority to remain. An Immigration Officer was called. She was arrested as an overstayer, interviewed and served with Form I51A Part 1, revealing that she was liable to be detained as someone with no authority to be in the UK. Part 2 of that Form was also served that day, indicating that a decision had been made to remove her to Malawi. The appellant was detained pending the giving of removal directions to Malawi on 8 April, to which she responded with representations that she should be removed to Botswana which is where her husband and grown up children were living and where she had previously lived before coming to the United Kingdom. She was removed to Botswana on 12 April.
During the time the matter was under consideration and before she was removed, she had written on 7 April to the UKBA explaining that she had not received notice of the result of her appeal in February 2010 and did not know that the appeal had been dismissed. Although she was advised to seek legal advice, it does not appear that any legal representations by a legal advisor were made on her behalf.
The appellant wrote a lengthy letter on 21 May 2010 in support of her appeal. She contends that the decision to remove her was unlawful and discriminatory because she had not received the decision refusing her appeal and consequently through no fault of her own did not know that she had to leave the United Kingdom. She states that during her interview with the immigration officer she pointed this out and received an apology for the failure to serve her. She explains her dismay that having called the police to investigate the fact that she was a victim of theft she found herself arrested as an overstayer. She points out that she would hardly have contacted the police if she had known her leave had expired. She was seeking legal advice while in detention but was not given an advisor able to act for her. She explained that she was refusing to go because she wanted her money back, which she could not achieve whilst in detention. She complained of the decision to detain her pending removal and pointed out that none of the reasons given in the notice served on her were accurate. She contended that she was treated so unfairly that the inference should be drawn that she was the victim of racial discrimination.
In his short determination, judge Place thought that the appellant may have been confused as to whether this was an appeal concerned with her extension of stay application as opposed to removal. It is true that the administration had attached the file for the variation appeal to the removal appeal, but the letter of May 2010 makes it quite clear what the appellant was complaining about and we see no reason to believe the appellant was confused as to the decision subject to appeal. Judge Place found no evidence of racial discrimination and at [11] concluded:
“Whilst it is unfortunate that the appellant was not sooner informed of the Tribunal's decision against her in relation to the student visa, the fact remains that once her appeal was dismissed she had no legal basis to remain in the United Kingdom. There is no evidence before me of any valid ground of appeal against the respondent's decision of the 4 April, 2010 and I dismiss the appeal”.
When the appellant received Judge Place's decision she appealed to the Upper Tribunal on 12 February 2011, complaining that the Judge had not dealt with the central contention in her case, namely that she was not subject to removal under s. 10 of the Immigration and Asylum Act 1999 as she had not knowingly remained beyond the time limited by her leave and had not used deception. The Judge, like the immigration officer, had accepted this lack of knowledge but did not go on to consider the legal consequences.
Permission to appeal to the Upper Tribunal was granted because there was some doubt as to whether Judge Place had fully dealt with the appeal on the information that was before him.
There is a short answer to the central contention of the appellant's case. For the purpose of liability to remove under s. 10(1) of the Immigration and Asylum Act 1999 it is not necessary for the authorities to demonstrate that the appellant knowingly remained beyond the period of her leave. It is sufficient if she did in fact remain beyond the period of her leave.
On the facts recited above this indeed was the case, irrespective of whether or not the decision promulgated on 9 February ever reached the appellant at her the address to which it was sent by post.
There is no information on the file to suggest that service was ineffective, but effective delivery by post can never be assured and the appellant may well have a point when she says that she would not have gone to the Police Station if she thought she had irregular status. She also points to the fact that on the 25 February she received a letter from the Tribunal returning her documents. This suggests that the Tribunal had the accurate address on record and there is no explanation as to why a decision should not have been sent to her.
A lack of knowledge that the appeal has been dismissed goes to the question of whether she knowingly overstayed, which is relevant to whether she was guilty of a criminal offence under s. 24(1)(b) of the Immigration Act 1971 rather than whether she is liable to removal. There is abundant authority for the proposition that knowledge of a breach of conditions of entry or remaining is not a prerequisite for the exercise of administrative power of removal: see Macdonald's Immigration Law and Practice, 8 th edition at 16.7 and 16.41, citing R v Governor of Ashford Remand Centre ex p Bouzagou [1983] Imm AR 69 and Hanif [1985] Imm AR 57. However, the cases and the textbook both make the point that...
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