MA (Pakistan) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 22 April 2005 |
| Date | 22 April 2005 |
| Court | Asylum and Immigration Tribunal |
Immigration Appeal Tribunal
Mr C M G Ockelton (Deputy President), Dr H H Storey (Vice-President) and Ms C Jarvis (Vice-President)
Representation:
Ms A Weston instructed by George Warsi Solicitors, for the Claimant;
Mr P Deller, Home Office Presenting Officer, for the Respondent.
Cases referred to in the judgment:
_S_K (ReturnEthnic Serb) Croatia CG* [2002] UKIAT 05613
CA v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 1165; [2004] Imm AR 640; [2004] INLR 453
DM (ProportionalityArticle 8) Croatia CG* [2004] UKIAT 00024; [2004] Imm AR 211; [2004] INLR 327
Govell v United KingdomHRC (1997) 23 EHRR CD 101, EComHR
KK (Under 12 PolicyIn Country Implications) Jamaica [2004] UKIAT 00268
Malone v United KingdomHRC (1985) 7 EHRR 14, ECtHR
MD (14 Years Not Disproportionate) Bangladesh [2004] UKIAT 00208
R (on the application of Dabrowski) v Secretary of State for the Home DepartmentUNK [2002] EWHC 2183 (Admin)
R v Secretary of State for the Home Department ex parte Gangadeen and Jurawaran and R v Secretary of State for the Home Department ex parte Khan [1998] Imm AR 106; [1998] INLR 206
R v Secretary of State for the Home Department ex parte Abdi (Dhudi Saleban) [1996] Imm AR 148
R v Secretary of State for the Home Department ex parte Mobin Jagot [2000] Imm AR 414; [2000] INLR 501
Shala v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 233; [2003] INLR 349
Silver v United KingdomHRC (1983) 5 EHRR 347, ECtHR
Legislation judicially considered:
Immigration and Asylum Act 1999, Schedule 4, paragraph 21
Immigration Rules HC 395 (as amended), Rules 4015
Human rights Article 8 of the ECHR meaning of not in accordance with the law immigration deception application of policies Seven Year Child Concession maintenance of effective immigration control
Between 1989 and 1999, the Claimant, a citizen of Pakistan, had entered the United Kingdom a number of times, and had set up a company and purchased a house. His children were all born in the United Kingdom and were being educated here. On the last of his return journeys in 1999, he was refused leave to enter and was granted temporary admission. He appealed against the refusal but later withdrew the appeal. He then made an application for exceptional leave to remain. The Secretary of State for the Home Department refused the application, concluding that the Claimant did not fall within the terms of the Long Residence Concession or the Seven Year Child Concession, and that his removal would not be a disproportionate interference with his right to family life, as protected by Article 8 of the ECHR. The Claimant appealed to an Adjudicator, who upheld the refusal, finding that the Claimant had used deception in his dealings with the immigration authorities. The Adjudicator considered this to be a factor weighing against the Claimant when assessing whether the decision to refuse the application was proportionate to the legitimate aim of maintaining effective immigration control. The Claimant appealed to the Immigration Appeal Tribunal, contending that the Adjudicator had misdirected herself as to whether the decision was in accordance with the law, and that her conclusions regarding proportionality were not reasonably open to her.
Held, dismissing the appeal:
(1) this was an appeal on human rights grounds only under s 65(1) of the Immigration and Asylum Act 1999 (the 1999 Act); as a result, the principles set out in Secretary of State for the Home Department v D S Abdi [1996] Imm AR 148 regarding the in accordance with the law jurisdiction did not apply (para 14);
(2) the Claimant's arguments based on his family and private life in the United Kingdom were at odds with his contention that he had always acted in accordance with the requirements of the Immigration Rules HC 395 (as amended) relating to visitors; he was relying on the one hand on the assertion that he and his family had always acted with the intention of remaining in the United Kingdom temporarily, in accordance with the requirements of the Immigration Rules, and on the other hand, that he had built and was maintaining a family and private life here; similar considerations applied in relation to the application of the Seven Year Child Concession: any reference to the children being settled in the United Kingdom had to be viewed in light of the Claimant's own insistence that he and his family intended to remain in the United Kingdom only temporarily (paras 28 and 33);
(3) the Claimant had clearly been in breach of the Immigration Rules by setting up his own company and trading in the United Kingdom, and had not disclosed this to the immigration authorities despite the legal obligation on him to do so; his reliance on private life connections in the form of his business activities had only been able to develop as a consequence of his use of deception when dealing with the immigration authorities (paras 34 and 35);
(4) it had been open to both the Secretary of State and the Adjudicator to balance the relevant factors under the Seven Year Child Concession and to conclude that the concession should not be granted to him; any presumption that length of residence would qualify under the policy was clearly rebutted by the seriousness of the Claimant's immigration deception (para 44);
(5) there was no material error of law in the Adjudicator's determination; there were no exceptional circumstances under either Article 8 or the Seven Year Child Concession which would override the interest of the Secretary of State in the maintenance of effective immigration control (para 51).
Determination and Reasons
H.H. Storey, Vice President
[1] The appellant is a national of Pakistan. He appeals against a determination of an Adjudicator, Miss Lynne Thornton, notified on 14 October 2003, dismissing his appeal against refusal of leave to enter on human rights grounds.
[2] The appellant had first come to the UK in 1989 as a visitor. For some period of time he had then held a multiple entry visit visa. On the last of his return journeys in January 1999 when he was in possession of what was described as a two month business visa, the Immigration Officer refused him leave to enter and granted him temporary admission. An appeal against the refusal of leave to enter was subsequently withdrawn. On 21 June 1999 the appellant made an application for exceptional leave to remain.
[3] In a document dated 15 July 2002 the Secretary of State concluded that to refuse this application would not interfere disproportionately with the right to respect for his private life or his family life. The appellant appealed.
[4] The Adjudicator upheld this decision. She did not consider that there were unusual or exceptional circumstances justifying the failure of the appellant to comply with the Immigration Rules. Furthermore, she considered that the respondent had properly concluded that the appellant did not fall within the parameters of the Long Residence Concession (LRC) (DP 5/96) or the Seven Years Child Concession (SYCC).
[5] In assessing the appellant's Article 8 claim, the Adjudicator balanced in his favour that he had set up his company, Eagelink Ltd, in June 1991, bought a house in Rotherham in March 1996 and that all his children had been born and educated in the UK and had, since the refusal decision in 1999, lived in the UK continuously. She further noted that the appellant had other relatives living in the UK, forming an extended family and there were also letters of support from a number of persons. She also appeared to accept he had never been involved in any form of criminal activities and had never been a burden on the state.
[6] She did not, however, consider these considerations outweighed those counting against him. She specified here the fact that the appellant used deception in order to obtain his multiple entry visa and the fact that he had been equivocal about his intentions, stating on the one hand that there had never been any intention to establish himself in the UK, yet on the other hand, when putting his Article 8 case, claiming that his family life in the UK was well-established, as evidenced in particular by his children being settled into school in the UK.
[7] The Adjudicator also considered whether delay in the respondent's processing of the appellant's application was a factor weighing in his favour. She decided it was not. She noted that the appellant had withdrawn his appeal against refusal of leave to enter in June 1999 and had not raised Article 8 until 25 April 2002.
[8] The Adjudicator also rejected the appellant's claim that the decision was rendered disproportionate by the fact that removal of the family would prevent them from visiting the grave of his wife's stillborn child born in 1996. In relation to the other children, she did not accept that English was the only language they spoke at home and she considered that, by virtue of the fact that the elder children had a pattern of spending 812 weeks a year in Pakistan prior to 1999, they had retained ties with that country.
[9] The appellant's business involvement was not seen to count very much, if at all, in his favour. The appellant knew when he set it up that he did not have entry clearance to remain in the UK, the only direct employee was his wife and the evidence that other companies depended on the work generated from Eagelink was mixed. She also saw no reason why the appellant could not conduct his business from...
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