Md (14 Years Not Disproportionate)
| Jurisdiction | England & Wales |
| Judge | Vice President |
| Judgment Date | 29 July 2004 |
| Neutral Citation | [2004] UKIAT 208 |
| Court | Immigration Appeals Tribunal |
| Date | 29 July 2004 |
[2004] UKIAT 208
IMMIGRATION APPEAL TRIBUNAL
Mr J Perkins (Vice President)
Mr T A Jones
Ms S S Ramsumair JP
MD (14 years not disproportionate) Bangladesh
Before us, the appellant, herein after as “the Secretary of State”, was represented by Ms J Donnelly, a Senior Home Office Presenting Officer, and the respondent, hereinafter “the claimant”, was represented by Mr M Schwenk of Counsel, instructed by David Gray & Co, Solicitors.
The claimant is a citizen of Bangladesh. He was born on 30 June 1959 and so is now 45 years old. In a determination as promulgated on 6 August 2003 the Adjudicator, Mr W C Coates, allowed his appeal against the decision of the Secretary of State that removal was not contrary to his rights under the European Convention on Human Rights. It is against that decision that the Secretary of State appeals.
The appellant arrived in the United Kingdom as a visitor on 31 March 1990. He did not leave when his permission to be in the United Kingdom came to an end. He overstayed and started work. On 5 February, 1996 he married at Liverpool Registry Office. He and his wife had taken part in an Islamic marriage ceremony a few weeks before at a Mosque in Liverpool. On 28 March 1996 the appellant applied for permission to remain on the basis of that marriage. This was the first contact he had with the respondent after he had entered the country in 1990.
On 2 January 1997 the claimant was told that his application to stay on the basis of his marriage was unsuccessful and he was issued with a Notice of Intention to deport. He appealed against that notice and the appeal was dismissed on 26 June 1997. He applied for permission to appeal further and that permission was refused by the Tribunal on 24 November 1997. There are parts of his chronology that we find very significant. Firstly the claimant lived in the United Kingdom without permission and without making any attempt to regularise his position for some five and a half years or thereabouts. When he did try and regularise his position he was unsuccessful. Just over nine months after he made his application to stay on the basis of his marriage he was given notice of a decision to deport him. He appealed that decision unsuccessfully and was told about eleven months after he had made his application that he could not appeal that decision any further. As Ms Donnelly quite rightly pointed out in submissions to us the claimant knew then and had known ever since that he had no right to be in the United Kingdom.
The claimant's wife was born in Bangladesh. On 20 July, 1999, that is about three and a half years after the claimant applied to stay in the United Kingdom on the basis of his marriage to her, she became a naturalised British citizen. The claimant's wife has a daughter, Sabrina, who was born on 15 October 1991. On 1 February 1997 the first daughter of the marriage, Sarmina was born. Another daughter, Amina was born on 17 January 1998 and a third daughter of the marriage, Nasrin, was born on 13 January 2001.
The claimant relied on an extra-regulatory policy developed by the Home Office known as DP5/96. Extraordinarily, given its importance to this case, neither party has produced a copy of this policy document. It was before the Adjudicator, and we have seen, a Home Office news release, dated 1 March 1999. This entitled “Immigrant families who have lived in the UK for seven years will be allowed to stay”. It continues “The Home Office changed the time limit under which immigrant families with young children can be forcibly removed from the country.” The news release then set out in a quotation from the Home Office Immigration Minister, Mr M O'Brien, in which he acknowledged the problems facing a child who had spent his formative years in the United Kingdom being uprooted to a different part of the world. It explained that the government was “changing the time limit from ten to seven years for families with young children who have been unable to establish a claim to remain”. It is plain from correspondence that this affected the Home Office policy document DP5/96, although that had itself been incorporated into a Policy Modification and announced by Mr O'Brien on 24 February 1999. According to a footnote in Butterworth's Immigration Law Service at page D188 a letter dated 19 April 1999 from Immigration Service Headquarters explained that the concession applies to all enforcement cases including cases where only one parent is subject to removal either by deportation or as an illegal entrant. However the full text of the policy modification made it plain that each date must be decided on its own merits. It says: “For the purposes of proceeding with enforcement action in the case involving a child, the general presumption is that we would not usually proceed it with enforcement action in cases where a child was born here… however, there may be circumstances in which it is considered that enforcement action is still appropriate, despite the lengthy residence of the child, …” It then lists examples of such circumstances and lists factors that are generally relevant. It is quite clearly not the case that there is an unequivocal policy of allowing families to remain when children have been in the United Kingdom for seven years or more.
The Adjudicator does not appear to have been shown a full copy of the policy statement. He did consider very carefully the written answer of a minister that features in the news release. The Adjudicator decided that the child Sabrina was a child of the family. She had been in the United Kingdom for more than seven years and, following the case of Abdi [1996] Imm 148, the respondent's decision was unlawful because he was not following his own policy.
The Adjudicator further found as a fact that, in the event of the claimant's deportation, he could not apply for entry...
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