RJ (India) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Sir David Keene |
| Judgment Date | 06 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1865 |
| Docket Number | Case No: C5/2012/1570 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2012 |
[2012] EWCA Civ 1865
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No. IA/14252/2011]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
Sir David Keene
Case No: C5/2012/1570
Mr Zane Malik (instructed by Malik Law Chambers) appeared on behalf of the Appellant.
Mr Thomas Roe (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
This is an appeal with permission granted by myself on 5 September 2012 against a decision of the Upper Tribunal (Upper Tribunal Judge McKee) dismissing the appeals of the appellant and his wife and two daughters from a determination of Immigration Judge Abebrese in the First-tier Tribunal promulgated on 8 July 2011. The FTT had dismissed their appeals against the Secretary of State's decision of 7 April 2011 to remove them following her refusal of their application for leave to remain outside the Immigration Rules in reliance on Article 8 of the Human Rights Convention.
The appellant and his dependants are citizens of India. The appellant, his wife and first daughter arrived in the United Kingdom on 21 April 2005. They had visitors' visas valid until the end of June 2005, but they overstayed. Another daughter was born in this country on 18 February 2007. The application for leave to remain was made on 31 March 2010. The appellant, for himself and his family, asserted that they could not be expected to relocate to Bihar or West Bengal, which was where they came from.
It was agreed on all hands that the determination of Immigration Judge Abebrese was so shot through with error that it would have to be set aside. Before the Upper Tribunal, Mr Malik of counsel took an entirely new point, abandoning other grounds. As Upper Tribunal Judge McKee frankly acknowledged, he was taken by surprise, as was the Home Office representative, but nevertheless the Upper Tribunal allowed the point to be argued. This new point is the basis of the appeal to this court. The argument is directed to section 10 of the Immigration & Asylum Act 1999. The section provides, so far as material:
"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if —
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
…
(c) directions […] have been given for the removal, under this section, of a person […] to whose family he belongs
(3) Directions for the removal of a person may not be given under section (1)(c) unless the Secretary of State has given the person written notice of the intention to remove him.
(4) A notice under subsection (3) may not be given if —
(a) the person whose removal under subsection (1)(a)… is the cause of the proposed directions under subsection (1)(c) has left the United Kingdom, and
(b) more than eight weeks have elapsed since that person's departure.
(6) Directions under this section —
(a) may be given only to persons falling within a prescribed class;
(b) may impose any requirements of a prescribed kind."
Prescriptions pursuant to section 10(6) are given in the Immigration Removal Directions Regulations 2000. They show that directions are to be given to the agencies which will actually effect the subject's removal —owners, agents or captains of ships or aircraft. Removal directions are not subject to any statutory right of appeal, whether under the appeal provisions contained in section 82 of the Nationality, Immigration and Asylum Act 2002 or otherwise. However, section 82(2)(g) gives a right of appeal against the prior
'decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c)...
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R Kalluri v Secretary of State for the Home Department
...that Mr Aredla gained leave to enter and to remain by deception; (4) applying the Court of Appeal's judgment in RJ (India) v the Secretary of State for the Home Department [2012] EWCA Civ 1865, Section 10 of the IAA 1999 did not require a sequential serving of notices and decisions to remov......