MA (Seven Year Child Concession)
| Jurisdiction | England & Wales |
| Judge | VICE PRESIDENT |
| Judgment Date | 22 April 2005 |
| Neutral Citation | [2005] UKIAT 90 |
| Court | Immigration Appeals Tribunal |
| Date | 22 April 2005 |
[2005] UKIAT 90
IMMIGRATION APPEAL TRIBUNAL
Mr C M G Ockelton (Deputy President)
Dr H H StOrey (Vice President)
Ms C Jarvis (Vice President)
Ms A Weston of Counsel instructed by George Warsi Solicitors for the appellant; Mr P Deller, Home Office Presenting Officer, for the respondent.
MA (Seven Year Child Concession) Pakistan
The appellant is a national of Pakistan. He appeals against a determination of Adjudicator, Miss Lynne Thornton, notified on 14 October 2003, dismissing his appeal against refusal of leave to enter on human rights grounds.
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 An appeal against the refusal of leave to enter was subsequently withdrawn.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.
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.
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).
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.
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.
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.
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 8–12 weeks a year in Pakistan prior to 1999, they had retained ties with that country.
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 Pakistan.
The grounds of appeal highlighted the fact that the appellant had built up his business in the UK over fourteen years, his speciality being to use his knowledge of particular business requirements of companies abroad to find buyers of otherwise unsaleable waste paper. His company had been listed in the “Who's Who of British Excellence of 2002”. He was a taxpayer and a number of persons owed their employment to the business generated by him. The grounds disputed the Adjudicator's finding that he had used deception in dealings with the immigration authorities. He had come to the UK in 1989 as a visitor, had held a multiple entry visa for business purposes and had ensured on each occasion that he left the UK prior to the expiry of the entry clearance period of visitor leave, either for a holiday or for business purposes.
Against this background, the grounds contended firstly that the Adjudicator had misdirected herself as to whether the decision of the Secretary of State was “in accordance with the law” (within the meaning of Article 8(2)); and secondly that her conclusions as to proportionality were not reasonably open to her. In respect of both of these submissions it was further maintained that the Adjudicator had failed to make findings on all relevant matters of fact and had failed to take into account all relevant evidence.
The first submission centred on the alleged error of the Adjudicator in considering that the appellant and his family could not benefit from the Secretary of State's Seven Years Child Concession. The Adjudicator, submitted Ms Weston, had also wrongly applied a test of “unusual or extraordinary circumstances” for success under Article 8 on the part of someone who could not meet all the requirements of the Immigration Rules.
In support of her first submission, Ms Weston prayed in aid the principle set out by the Court of Appeal judgment in D S Abdi [1996] Imm AR 148.
We do not see that principles set out by the Court of Appeal in D S Abdi have direct application in this case. That judgment concerned the “in accordance with the law” jurisdiction arising under s.19 of the Immigration Act 1971 as amended and as subsequently maintained in paragraph 21(1)(a) of Schedule 4 to the 1999 Act. By paragraph 21(2) of that same Schedule, that jurisdiction is made “subject to … any restriction on the grounds of appeal”. As Ms Weston properly conceded, the appeal in this case was brought solely under s.65 (1) and thus was restricted to human rights grounds. Matters are of course different under the Nationality, Immigration and Asylum Act 2002, which applies an “in accordance with the law” requirement to all immigration decisions: see s.84 (1)(e). But this was not an appeal under the 2002 Act.
Ms Weston's fallback submission was that D S Abdi principles still nevertheless applied directly in the context of the identically worded requirement set out in Article 8(2) of the ECHR that any interference with a right protected under Article 8(1) be “in accordance with the law”. Her argument here was in two stages. “Law” in the context of Art 8 was, she said, a term which had to be given an autonomous and broad definition. In addition, if the Home Office failed to consider a person under an applicable concessionary policy, the relevant decision could not be said to be “in accordance with the law”.
It is not necessary in this case to decide precisely what points of difference exist between paragraph 21(1)(a) of Schedule 4 to the 1999 Act on the one hand and the relevant part of Article 8(2) on the other. We can easily agree with the first-stage of Ms Weston's argument that under both the term “law” has a wider meaning than primary and secondary legislation and can cover extra-statutory governmental policies and guidelines: Silver v UK (1983) 5 EHRR 347, Malone v UK (1985) 7 EHRR 14, Govell v UK (14 January 1998); noted at [1999] EHRLR 121.
However, the second stage of Ms Weston's argument is more problematic. In Strasbourg jurisprudence the ‘in accordance with the law’ requirement has essentially been seen to embody the principle of legality, itself seen as comprising three rules: identification of a basis in law, accessibility and certainty. As the Tribunal has noted in KK [2004] 00268, the jurisprudence of the European Court of Human Rights thus requires that governmental policies are sufficiently accessible and precise so as to enable citizens to regulate their conduct by it. But we do not think she wished to argue that the Seven Years Child Concession lacked sufficient accessibility and precision. And had that been her argument we would have rejected it straightaway: the SYCC was a published policy which contained identifiable criteria: it was thus accessible and precise.
Ms Weston's argument was really about a somewhat different point, namely that “in accordance with the law” under Art 8(2) encompassed the same principle of administrative law as set out in D S Abdi — that decision-makers were under a duty to apply the law (including law as founding the form of governmental policies). Here there is this difficulty. We would accept it is arguable that the principle of legality includes the principle that decision-makers should apply (as well as properly identify) the law in this broad sense. But we are not prepared to accept without more that Strasbourg has seen the principle of legality to extend that far in the context of Art 8(2). Ms Weston produced no authority in support of this contention. That being so, we do not accept that Art 8(2) can be said to encapsulate precisely the same principles...
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