Thandiwe Qongwane and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Underhill,Lord Justice Lewison |
| Judgment Date | 08 July 2014 |
| Neutral Citation | [2014] EWCA Civ 957 |
| Docket Number | Case Nos: C5/2013/2340, 2341, 2342 & C4/2013/1935 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 July 2014 |
[2014] EWCA Civ 957
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
VICE PRESIDENT (CMG OCKELTON and JUDGE ALLEN
AND ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE THORNTON QC (sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Underhill
and
Sir Stanley Burnton
Case Nos: C5/2013/2340, 2341, 2342 & C4/2013/1935
and
Zane Malik (instructed by MLC Solicitors) for the Appellants Thandiwe Qongwane, Vilan Patel and Aysha Khanum
Becket Bedford (instructed by MLC Solicitors) for Dalvir Singh
Julie Anderson (instructed by the Treasury Solicitor) for the Secretary of State
The Upper Tribunal (Immigration and Asylum Chamber) did not appear and was not represented Interested Party
Hearing date: 24 June 2014
Introduction
These appeals raise questions as to the interpretation and effect of paragraph 353B of the Immigration Rules, which became effective on 13 February 2012. It came into force at the same time, and following the same Statement of Changes in Immigration Rules, as the deletion of paragraph 395C. Paragraph 353B is in Part 12 of the Immigration Rules, entitled "Procedure and rights of appeal". It is as follows:
" Exceptional Circumstances
353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:
(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused;
in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
This paragraph does not apply to submissions made overseas.
This paragraph does not apply where the person is liable to deportation."
As published, the antepenultimate paragraph (beginning "in deciding …") is part of subparagraph (iii), but it is obvious, and was agreed before us, that paragraph 353B should be read as formatted above.
The facts
(1) Thandiwe Qongwane
Thandiwe Qongwane is a citizen of Malawi, aged 31. She arrived in this country in 2003 with an entry clearance visa as a student. As subsequently extended, it expired on 30 November 2005. She has been here unlawfully since then.
In October 2011, Ms Qongwane made an application for leave to remain on the ground of her rights under Article 8 of the European Convention on Human Rights. On 23 May 2012 the Secretary of State served notice that she had decided to remove Ms Qongwane, for the reasons set out in her decision letter of that date addressed to Ms Qongwane's solicitors. In that letter the Secretary of State rejected the human rights claim, giving cogent and unexceptionable reasons for doing so. The letter continued:
"Careful consideration has been given as to whether your client should qualify for Discretionary Leave in the United Kingdom. Consideration has therefore been given to the following factors:
(i) Character, conduct and associations including any criminal record and the nature of any offence of which the applicant has been convicted.
(ii) Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable.
(iii) Length of time spent in the United Kingdom accrued for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused.
(iv) Any representations received on the persons behalf.
Careful consideration has been given to all these circumstances individually and together, but for the reasons given above it is not accepted that there are exceptional circumstances in your case considered sufficiently compelling to justify allowing you to remain in the United Kingdom.
…
Regard has been given to all the representations submitted. However, for the reasons given above, it is considered that your client's removal from the United Kingdom is appropriate."
As she was entitled to do, Ms Qongwane appealed under section 82(2) (g) of the Immigration Act 2002 to the First-tier Tribunal. Not surprisingly, it had no difficulty in dismissing her appeal. It did not expressly consider the application of paragraph 353B to her case, but having considered the matters relied upon for her Article 8 claim and determined that her removal would not infringe her rights under that Article, it concluded:
"There is no evidence of anything in the appellant's private life to found compassionate circumstances such as to justify a finding that the appellant should be allowed to remain outside the Immigration Rules under Article 8. We find that the appellant' private life would be able to continue in all its essential respects in Malawi and that her removal is proportionate in all the circumstances."
She appealed to the Upper Tribunal, which heard her appeal together with that of Vilan Patel and Aysha Khanum and three others. I shall refer to its determination below.
(2) Vilan Patel
Mr Patel's case was considered by the Secretary of State in a letter dated 2 October 2012. It did not refer expressly to paragraph 353B, but it referred to the length of time he had been in this country and to the fact that he was an overstayer who had remained in breach of immigration laws, to the fact that he had no criminal record, and to the representations that had been made on his behalf. It was concluded that his removal would not infringe his rights under Article 8 and that there were no sufficiently compelling or compassionate circumstances to justify his remaining in this country. For these reasons, the Secretary of State had decided to issue removal directions.
Mr Patel too appealed to the First-tier Tribunal. It addressed his appeal as an Article 8 claim only, and rejected it. He too appealed to the Upper Tribunal.
(3) Aysha Khanum
In her decision letter dated 22 March 2012 the Secretary of State considered and rejected Mrs Khanum's Article 8 claim. In addition, the letter cited Paragraph 353B, set out and addressed the factors it required to be considered and concluded that her removal was appropriate. It informed her that the Secretary of State had decided to remove her.
Mrs Khanum appealed to the First-tier Tribunal. According to its determination, dated 5 July 2012, the only grounds relied upon were her contentions that her rights under Articles 3 and 8 would be infringed by her removal. The Tribunal carefully considered the evidence and rejected her claims.
(4) Dalvir Singh
Mr Singh entered the United Kingdom illegally, according to him in January 2004. He applied for asylum and was served with removal papers. The Secretary of State rejected his claim on 5 February 2004; he then absconded. In July 2011 he applied for leave to remain on the basis of an Article 8 claim. It was refused with no right of appeal on 30 August 2011. The Secretary of State's letter dated 20 March 2012 stated that his case had been reviewed but the decision maintained to refuse leave to remain and to remove him. The letter referred to paragraph 353B, listed the factors to which it referred, and stated:
"Having considered the factors referred to in paragraph 353B of the Immigration Rules the Secretary of State has concluded that there are no exceptional circumstances in your case. It is therefore appropriate to proceed with your removal from the United Kingdom."
The letter stated that in reaching her decision the Secretary of State had noted his immigration history, and continued:
"You have remained in the United Kingdom without leave to enter or remain for 8 years and 2 months. No delay has occurred in dealing with your application(s). The length of your residence in the United Kingdom has resulted from your non-compliance with the immigration laws.
Although you have remained in the United Kingdom without valid leave to do so, you have no known criminal record, and therefore your character, conduct and associations are not otherwise in doubt.
Having considered the factors referred to in paragraph 353B of the Immigration Rules the Secretary of State has concluded that there are no exceptional circumstances in your case."
I would have thought that this decision was wholly unexceptionable, indeed that no other decision could sensibly have been made by the Secretary of State. Nonetheless, Mr Singh appealed. The determination of the First-tier Tribunal refers solely to his Article 8 claim: there is no trace of any ground relating to paragraph 353B. The Tribunal's rejection of his claim was, to say...
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