R Kadi v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SIR OLIVER POPPLEWELL |
| Judgment Date | 10 May 2001 |
| Neutral Citation | [2001] EWHC 375 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 May 2001 |
| Docket Number | NO: CO/2171/00 |
[2001] EWHC 375 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Sir Oliver Popplewell
(Sitting as a Deputy High Court Judge)
NO: CO/2171/00
MR RAMBY DE MELLO (instructed by Fawcett Pattni, 150 Lichfield Street, Walsall WS1 1SE) appeared on behalf of the Claimant
MR MICHAEL FORDHAM (instructed by Treasury Solicitior, London SW1H 9JS) appeared on behalf of the Defendant
Thursday, 10th May 2001
In this case the claimant seeks, pursuant to leave granted by the single judge, to challenge the decision of the Secretary of State for the Home Department dated 27th July 2000 informing the claimant's solicitor that the policy announced by the under Secretary of State for the Home Department, Mr O'Brien, on 24th February 1999, and further explained in a letter dated 19th April 1999 from the Immigration Service Headquarters, only applied to enforcement cases and not to port of arrival decisions, as in this case. What is sought is a declaration that the policy document covers port of arrival decisions, and/or that if it does not it is irrational, and/or that the claimant and his family should not be required to leave the country.
The facts can be quite shortly stated, and they are these. On 16th September 1993 the claimant and her daughters, Nermin (born 23rd October 1984) and Hidayet (born 21st September 1986) presented at the port on arrival and sought leave to enter as dependants of the claimant's husband, Savas Kadi. Mr Kadi's asylum application had been made on 3rd August 1993 and was pending determination. The claimant and her daughters were not granted leave to enter as dependants of Savas Kadi, rather they were granted temporary admission as persons liable to detention. It means that they were and have remained "a port case".
Mr Kadi's asylum application was refused on 26th April 1994. He appealed against that refusal. However, on 28th September 1995, and while that appeal was still pending, he returned voluntarily to Cyprus and did not return to attend the hearing of his appeal in November 1995. His appeal was treated as abandoned.
The day before her husband's appeal was to be heard, the claimant applied for asylum basing her application on substantially the same facts as her husband's asylum claim. On 1st March 1996 the Secretary of State refused the claim. On 17th March 1996 the claimant's husband returned to the United Kingdom and made a second asylum claim at his port of arrival. This claim was refused on 27th May 1996. There were appeals against that refusal and the Adjudicator dismissed those appeals in January 1998. Leave to appeal to the Immigration Appeal Tribunal was refused in March 1998, and removal directions were set for April 1998.
Thereafter there was an exchange of correspondence between those acting on behalf of the claimant making representations about the daughter Nermin, who has some medical problem. In April 2000 Mrs Kadi's solicitors wrote submitting that indefinite leave to remain should be granted on the basis of the seven year residence concession, to which I will refer in a moment. This was refused and steps were taken to secure their removal. They lodged papers for judicial review and removal has not now taken place.
The statutory background involved in this case is this. There are three types of persons who may be required to leave the country (I use that in the most neutral way). There are illegal entrants, there are overstayers, and there are port arrival cases. They are governed by separate provisions in statutes and I refer to the history of the statutory provisions by reference to Mr De Mello's helpful skeleton argument.
An illegal entrant is defined in section 33(1) of the Immigration Act 1971 and notably includes one who has entered or who is seeking to enter the United Kingdom unlawfully. Thus, it includes one who has not as yet entered the United Kingdom as understood with reference to section 11(1)1A 1971. They are subject to removal directions under Schedule 2 paragraphs 8 and 9. They may be detained: paragraph 16(2) Schedule 2 1A 1971. They may be removed from the United Kingdom: paragraph 10 of Schedule 2. They are liable to criminal sanctions: section 24(1)(a) 1A 1971. Once detected they may be granted temporary admission: paragraph 21(1) Schedule 2. As a matter of administrative arrangements at the Home Office they are dealt with by an illegal entrant section.
Overstayers liable to deportation are those falling within section 10(1)(a) of the Immigration Asylum Act 1999 —remaining beyond leave limited leave. They are liable to prosecution: section 24(1)(b) 1971 Act. They are liable to removal: section 10(7) and Schedule 2 paragraphs 10, 11, 16-8, 21, 22, 24 and the Immigration (Removal Directions) Regulation 2000 S1 2000/2243 which came into force on 2nd October 2000. They are liable to detention once they have stayed beyond their limited leave: paragraph 16 Schedule to the 1971 Act. They may be granted temporary admission: paragraph 21 Schedule 2. They are governed administratively by a detention body who act on behalf of the Home Office.
Port arrival cases are dealt with quite separately administratively by the Home Office and are not governed by the administrative rules of illegal entrants or those liable to be deported. The port arrival cases are persons not given leave to enter: see section 11(1) of the 1971 Act and paragraph 2 Schedule 2. They may be given temporary admission: paragraph 21 Schedule 2. They are liable to detention: paragraph 16 Schedule 2. Usually they are not liable to prosecution unless they abscond: section 24(1)(d)(e). It is doubtful whether they are liable to prosecution under section 24A(1)(a) but are liable under section 24A(1)(b) of the 1971 Act as amended by the 1999 Act. Mr De Mello says there is no material difference between each category of person who is liable to removal from the United Kingdom.
Now the issue in this case relates to a policy statement by Mr O'Brien, the Under Secretary at the Home Office. The policy statement, dated 24th February 1999, reads as follows:
"For a number of years it has been the practice of the Immigration Nationality Directorate not to pursue enforcement action against people who have children under 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits."
Factually, these children have been here for a continuous period of seven years and, therefore, if this policy applies to them they are covered by it.
The Immigration Service Headquarters on 19th April issued a letter as follows:
"The concession announced by Mr O'Brien on 24th February applies to enforcement cases where one or both of the parents is subject to action to remove them from the United Kingdom, either by deportation or removal as an illegal entrant. It applies to all cases irrespective of whether a deportation order has been signed."
The issue which arises in this case is whether the phrase "enforcement action" or "enforced removal" is limited to those cases of deportation and illegal entry, or whether it also includes port cases. It is necessary, therefore, in construing the policy statement of Mr O'Brien, not to look at it in isolation, in my judgment, but to have regard to the previous policy statements which have been issued over the years. To that end, it is necessary to go through a number of the policy statements to see how they have developed.
The first one in time is DP/293 and instruction to IES (1) and (2). "DP" signifies that it is a deportation document and "IES" indicates that it is an instruction to the illegal entry service. That document, which is dated January 1993, starts with "Marriage Policy":
"1. All deportation and illegal entry cases must be considered on their individual merits."
It says nothing about port entry.
The next one is DP4/95 (again it has the initial DP) and relates to:"Deportation And Removal Of Children Whose Parent Or Parents Are Subject To Deportation Action." Under 2:
"The purpose of this notice is, therefore, to advise caseworkers that deportation action against children should in future be considered at the outset…"
Plainly it does not govern port cases.
In 1996 there were three notices: DP3/ 96, DP4/96 and DP5/96. I accept the argument by Mr Fordham that they are to be read together. DP3/96 is also an instruction to IES and says this:
"This notice provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom. This notice supersedes DP2/93 which is hereby cancelled."
Under paragraph 3:
"Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for...
To continue reading
Request your trial
-
R (on the application of A) v Secretary of State for the Home Department
...[2008] 1 WLR 1434. Baig v Secretary of State for the Home Dept[2005] EWCA Civ 1246. Kadi v the Secretary of State for the Home Dept [2001] EWHC Admin 375. NF (Ghana) v Secretary of State for the Home Dept[2008] EWCA Civ 906, [2008] All ER (D) 409 (Jul). R (on the application of Dabrowski) v......
-
R Krystian Dabrowski Damian Dabrowski Ursula Kasprowicz and The Secretary of State for the Home Department
...(in particular Abu Shahed [1995] IAR 303 and Jackson [1996] IAR 243 in this court, and Sir Oliver Popplewell's decision in Kadi [2001] EWHC Admin 375) that absent this evidence and Mr Eicke's concession, I would by no means necessarily have been persuaded that the limitation on the face of ......