Khanum & Others (Paragraph 353B) [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,C M G Ockelton,Allen,Allen UTJ |
| Judgment Date | 13 June 2013 |
| Neutral Citation | [2013] UKUT 311 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 June 2013 |
[2013] UKUT 311 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, Vice President
Upper Tribunal Judge Allen
For the Appellants: Mr Z Malik, instructed by Malik Law Chambers, Solicitors
For the Respondent: Mr D Hayes, Senior Home Office Presenting Officer
Khanum & Others (paragraph 353B)
Paragraph 353B of HC 395 is not designed to replace paragraph 395C. In a case where there are no outstanding further submissions and appeal rights are exhausted, the decision whether or not to carry out a review (within the scope of para 353B) is entirely a matter of discretion of the Secretary of State and is not justiciable.
1. These appeals all raise common issues as to the scope of paragraph 353B of the Immigration Rules. All four principal appellants (Mr Dhanani's wife and son are dependants on his appeal) appealed to judges of the First-tier Tribunal against decisions of the Secretary of State to remove them from the United Kingdom as overstayers. The appeals were all dismissed, but permission was granted to appeal to the Upper Tribunal on the basis of the arguments set out by Mr Malik in his grounds, and which he developed before us.
2. Mr Malik has identified three issues of principle which, he says, require determination.
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(a) Whether a decision to remove an overstayer is, “not in accordance with the law”, if the Secretary of State makes that decision without giving any consideration to paragraph 353B of the Statement of Changes in Immigration Rules HC 395 (as amended).
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(b) Whether, on an appeal against a decision to remove an overstayer made by the Secretary of State after considering paragraph 353B, a First-tier Judge should determine whether the discretion should have been exercised differently.
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(c) Whether a decision which is unlawful at common law is always incompatible with Article 8.
3. He developed these points further in his skeleton argument and in his submissions before us.
4. Mr Malik argued that although issue (b) had not been argued before the First-tier Judges, these were lead cases and there were other cases in the pipeline and it was desirable for the Tribunal to deal with the point today. The facts of the cases were not in dispute. All were people in respect of whom a decision to remove as overstayers had been made. There was not a question of any other breach while they were overstaying. It was beyond dispute that there was an in-country right of appeal in each case.
Nationality, Immigration and Asylum Act 2002
“82. Right of Appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal;
(2) In this Part ‘immigration decision’ means –
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in United Kingdom).
84. Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds –
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(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules.
…
85. Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
…
86. Determination of appeal
(1) This section applies on an appeal under section 82(1), 83 or 83A
(2) The Tribunal must determine –
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85 and
(b) any matter which section 85 requires it to consider.
(3) The Tribunal must allow the appeal in so far as [it] thinks that –
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.
(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).
87. Successful appeal: direction
(1) If the Tribunal allows an appeal under section 82, 83 or 83A it may give a direction for the purpose of giving effect to its decision.
“395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State, including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
In the case of family members, the factors listed in paragraph 365-368 must also be taken into account.
(deleted on 13 February 2012).
“353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
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353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:
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(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
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(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
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(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
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This paragraph does not apply to submissions made overseas.
This paragraph does not apply where the person is liable to deportation.”
(Inserted from 13 February 2012).
5. At paragraph 7.7 of the Explanatory Memorandum to the Statement of Changes in Immigration Rules presented to Parliament on 19 January 2012 (HC 1733) it is said that the effect of the decisions of the Court of Appeal in Mirza [2011] EWCA Civ 159 and Sapkota [2011] EWCA Civ 1320 is to require the UKBA to make approximately 20,000 additional removal decisions every year. The Secretary of State's view is that if there are reasons why a person should not be removed the onus should be on him to make the relevant application rather than requiring the Secretary of State to have the responsibility of identifying and considering all factors known to her and identifying those which may be relevant. For these reasons paragraph 395C was being deleted, and the UKBA was changing its processes so that refusal and removal decisions could be made as required by Sapkota. It is said that the burden is on the migrant to apply specifically for consideration if he has other reasons why he claims he should not be removed from the United Kingdom, for example compassionate factors or protection issues.
6. Paragraph 7.10 refers to the situation where a migrant has unsuccessfully made an application on human rights or asylum grounds and the case is being reviewed. The notion of a review arises again in paragraph 53.1 of the Enforcement Instructions Guidance and of course in the wording of paragraph 353B itself.
7. Paragraph 53.1 of the Enforcement Instructions Guidance addresses the issue of when to consider exceptional circumstances. There is reference there to exceptional circumstances being considered in cases where an asylum or human rights claim has been refused, appeal rights have been...
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