Upper Tribunal (Immigration and asylum chamber), 2009-09-14, [2009] UKAIT 39 (MA (Illegal entrants, not para 395C))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen |
| Status | Reported |
| Date | 14 September 2009 |
| Published date | 28 September 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 07 August 2009 |
| Subject Matter | Illegal entrants, not para 395C |
| Appeal Number | [2009] UKAIT 39 |
MA (Illegal entrants – not para 395C) Bangladesh [2009] UKAIT 00039
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
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Heard at Procession House |
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On 7 August 2009 |
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Before
SENIOR IMMIGRATION JUDGE ALLEN
Between
ma
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Dr F Chaudhry, of IAS (Manchester)
For the Respondent: Mr J Parkinson, Home Office Presenting Officer
Section 10 of the Immigration and Asylum Act 1999 has no application to an illegal entrant
to the United Kingdom and hence, as a consequence, neither does paragraph 395 of HC 395.
DETERMINATION AND REASONS
1. The appellant is a national of Bangladesh. He appealed to an Immigration Judge against the Secretary of State’s decision of 29 October 2007 to remove him as an illegal entrant.
2. It is not necessary to go into the substantive issues of the appellant’s claim since there is no challenge to the Immigration Judge’s adverse credibility findings and his conclusion that the appellant would not be at risk on return to Bangladesh. At issue is the matter considered by the Immigration Judge at paragraphs 27 to 29 of his determination. It is perhaps helpful if I quote those paragraphs in full as they appear in the determination promulgated to the parties:
“27. As a starting point it is perhaps appropriate to address the concern expressed by Dr Chaudhry with regard to his reliance on paragraph 395(C). I have heard the representations on this aspect from both Dr Chaudhry and from Mr Burns, and I conclude that I agree with the interpretation of the Home Office. Dr Chaudhry contends that the wording on a Notice of Immigration Decision to be found on Form IS151B requires consideration of paragraph 395 and thereafter paragraph 364 of the Immigration Rules. In this case, I am quite satisfied that that is not the case. The wording grammar is of relevance. It states:
‘Decision to remove an illegal entrant/person subject to administrative removal under Section 10 of the Immigration and Asylum Act 1999 – Asylum/Human Rights Claim Refused.’
28. Dr Chaudhry submits that the reference to Section 10 of the Immigration Act and Asylum Act 1999 requires the Home Office to consider paragraph 395 of the Immigration Rules. The Home Office indicate that they do not agree and I support the Home Office contention. The Home Office case is based on the fact that there is a difference between taking relief pursuant to Section 10 on the grounds that the Appellant is an overstayer, as against the appellant being an illegal immigrant pursuant to Section 33 of the 1971 Immigration Act. Mr Burns submits, and I agree, that Section 395 does not apply if the appellant is an illegal entrant under the 1971 Act.
29. Much is placed by Dr Chaudhry on the fact that the above paragraph recites both reference to illegal entrant and a person subject to administrative removal under Section 10 in the same sentence. With respect to Dr Chaudhry’s analysis, I prefer the interpretation as submitted by the Home Office, namely that that title an IS151B sets out the circumstances in the alternative and you have to look at the various type of removal that is sought. This is not a case for removal on the grounds that the appellant is an overstayer. This is a case for removal where the appellant is an illegal immigrant. The relevant law is Section 33 of the 1971 Act and I conclude that the Home Office are right in stating that para 395 considerations do not apply.”
3. The appellant sought reconsideration solely on the basis that, as was argued by Dr Chaudhry before the Immigration Judge, removal directions had been issued under Section 10 of the 1999 Act and therefore paragraph 395C was said to be patently applicable. A Senior Immigration Judge ordered reconsideration on the basis that the point was arguable.
4. The hearing before me took place on 7 August 2009. Dr F Chaudhry of the IAS (Manchester) appeared on behalf of the appellant. Mr J Parkinson appeared on behalf of the Secretary of State.
5. Dr Chaudhry relied on the grounds. He argued that removal directions had been made under section 10. He referred to a decision he had submitted of TE (Eritrea) [2009] EWCA Civ 174 and argued that it was relevant to the issue. There had been a failure to consider the paragraph 395C criteria and the decision was therefore materially flawed.
6. Mr Parkinson referred to what apparently used to be known as the PF1 and is now the form with the reference number 9836329, the front sheet to the Secretary of State’s bundle to the Tribunal. Under the heading “Decision” the following is said:
“On 29 October 2007 a decision was made to refuse to grant asylum under paragraph 336 of HC 395 (as amended), and on 29 October 2007 a decision was made to remove an illegal entrant from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971.”
He argued that it was therefore the case that it was not a matter of removal by virtue of section 10, which did not apply to the appellant. The two documents should be read in concert. This was clearly a removal under the 1971 Act and not the 1999 Act. He made the further point that the appellant had never attended for interview and therefore it would have been impossible in any event, even if it were necessary to do so for the matter to be considered under paragraph 395C.
7. By way of reply Dr Chaudhry argued that the IS151B referred to removal directions under Section 10 and was applicable and had not been withdrawn.
8. I reserved my determination.
9. This appeal raises a short point on the ambit of section 10 of the Immigration and Asylum Act 1999 with reference to the form IS151B containing a notice of immigration decision. As Mr Parkinson has pointed out, the front sheet, as it were, to the Secretary of State’s bundle refers to a decision being made to refuse to grant asylum under paragraph 336 of HC 395 (as amended) and on the same day a decision was made to remove an illegal entrant from the United Kingdom by way of directions under paragraphs 8 to 10 to Schedule 2 to the Immigration Act 1971. That is not of course a notice which complies or seeks to comply with the Notices Regulations, and the notice of immigration decision purportedly in compliance with those Regulations is the IS151B, the heading of which is as follows:
“Decision to remove an illegal entrant/person subject to administrative removal under Section 10 of the Immigration and Asylum Act 1999/Asylum/Human rights claim refused.”
10. The notice then goes on to refer to the appellant and the serving on him of form IS151A on 17 September 2007 informing him of his immigration status and liability to detention and removal and the decision to refuse his claim for asylum and/or human rights for the reasons stated in the attached letter and reference to the decision that had now been taken to remove him from the United Kingdom and his right of appeal.
11. At this point it is necessary to set out the relevant parts of section 10 of the Asylum and Immigration Act 1999. This states as follows:
“10. Removal of certain persons unlawfully in the United Kingdom
(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;
[(b) he uses deception in seeking (whether successfully or not) leave to remain;
(ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee);] or
(c) directions […] have been given for the removal, under this section, of a person […] to whose family he belongs.
…”
12. It is not, I think, in dispute that the appellant is an illegal entrant to the United Kingdom. Indeed it is said at paragraph 9 of the Immigration Judge’s determination that it had been the appellant’s case that he had arrived illegally in the United Kingdom in November 1999 and since then had been working in the United Kingdom as a butcher. I see nothing in the wording of section 10 of the Immigration and Asylum Act 1999 to render it applicable to the appellant’s case as an illegal entrant rather than a person who, for example, has only limited leave to enter or remain and does not observe a condition attaching to the leave or remains beyond the time limited by the leave. It would therefore not be lawful for the Secretary of State to remove the appellant from the United Kingdom in accordance with section 10 of the Immigration and Asylum Act 1999. It is clear from section 3(1) of the Immigration Act 1971 that a person who is not a British citizen:
“(a) …shall not enter the United Kingdom unless given leave to do so in accordance with [the provisions of, or made under] this Act;”
An illegal entrant is defined at section 33(1) of the 1971 Act as meaning a person:
“(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
(b)...
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