ZH (Bangladesh) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Keene,Lady Justice Smith |
| Judgment Date | 19 January 2009 |
| Neutral Citation | [2009] EWCA Civ 8 |
| Docket Number | Case No: C5/2008/1477 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2009 |
[2009] EWCA Civ 8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IA/21829/2007
Lord Justice Sedley
Lord Justice Keene and
Lady Justice Smith
Case No: C5/2008/1477
Mr Z Malik (instructed by Messrs Malik Law Chambers) for the Appellant
Mr A Payne (instructed by the Treasury Solicitors) for the Respondent
Hearing date: Thursday 11 December 2008
Lord Justice Sedley :
The appellant Zakir Hussain (there is no need for anonymity) is a national of Bangladesh, now 50 years old, who has been in this country since April 1991. He entered on a 6-month visitor's visa and has been here, it appears, ever since. In June 2006 he applied (not for the first time) for indefinite leave to remain on the ground of long residence. The Home Secretary refused, and the refusal was upheld on appeal, first by IJ Ferguson and then, on a first-stage reconsideration, by SIJ Chalkley.
Paragraph 276B of the Immigration Rules provides:
Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom; or
(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from the United Kingdom; and
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) previous criminal record and the nature of any offence of which the person has been convicted; and
(f) compassionate circumstances; and
(g) any representations received on the person's behalf; and
(iii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.
The 14-year rule set out in Rule 276B(i)(b) is thus specifically directed to people who have managed to stay here for 14 years or more without lawful authority. It is in effect an amnesty clause. But among the public interest considerations in sub-rule(ii) are some which are ambiguous – the applicant's employment record, for example. Employment in a 14-year case may very well have been unlawful: is a sustained record of unauthorised employment to count for or against the applicant?
IJ Ferguson summarised his findings thus:
“33. In short, weighing up the factors listed at paragraph 276B(ii) nothing is in his favour except that he has no criminal record and has been in the United Kingdom for a long period of time. That should count as some sort of compassionate circumstance but the rule only applies to people who have been in the United Kingdom for at least a decade so sub-paragraph (f) must amount to more than that and no other compassionate circumstances were raised by the appellant. I bear in mind that for all of the time the appellant has lived in the United Kingdom save for the first six months he has been very aware that he is not entitled to remain in the United Kingdom. I find that he has not discharged the burden on him to show that the decision of the respondent was not in accordance with paragraph 276B(ii) of the immigration rules. He has not demonstrated on the balance of probabilities that there are no reasons why it would be undesirable for him to be given indefinite leave to remain.”
The SIJ conducting the reconsideration found no error of law in this determination. It is therefore on IJ Ferguson's decision that this appeal has to focus. It is attacked on three grounds: first, that the immigration judge without notice relied on paragraph (ii) grounds which had not been relied on by the Home Secretary; secondly that he misconstrued Rule 276B; and thirdly, that he failed to deal with a fallback upon discretion under Rule 395C. Dyson LJ, granting permission to appeal on sight of the papers, wrote:
“This appeal has real prospects of success. I give permission on all 3 grounds. Ground 2 raises a point of some general importance i.e. whether, in the light of Aissaoui, the factors identified by IJI at paras 27–29 of his determination are capable of justifying the conclusion that, having regard to the public interest and taking account of the factors set out at para 276B (ii) (a)-(g) of the Rules, it would be unreasonable for A to be given indefinite leave to remain on the ground of long residence.”
The facts
The Home Office refusal letter, dated 6 December 2007, made no reference at all to Rule 276B. Its principal thrust was that the Home Office did not accept that Mr Hussain had been here continuously since 1991. It rejected any claim to remain under ECHR art. 8 or on compassionate grounds. It then said:
“Consideration has also been given to Paragraph 395C of the Immigration Rules. Paragraph 395C requires that consideration will be given to the following factors when deciding whether to remove an offender under Section10 of the Immigration and Asylum Act 1999:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
You are aged 49 and claim to have lived in the United Kingdom for 16 years and 6 months, but only 6 months of this was with leave to enter. It is not considered that either your age or length of residency provide grounds for not removing you from the United Kingdom. It is not considered that either your ties to the United Kingdom or domestic circumstances are sufficiently compelling to justify you to remain in the United Kingdom. It is noted that you have no close family ties to persons present and settled in the United Kingdom or employment or business interests in the United Kingdom. It is also not considered that there are any sufficiently compelling or compassionate circumstances to justify allowing you to remain in the United Kingdom. Regard has been given to all the representations you have submitted, however for the reasons given above it is considered that your removal from the United Kingdom is appropriate.”
The immigration judge's determination included the following:
“6. In his evidence in chief the appellant adopted his statement and confirmed that he came to United Kingdom in 1991 when he was aged about 34. He gave a list of different places where he had lived: first in Barness in Windemere where he worked in the Raja Tandoori restaurant; then in Manchester where he worked in various places; Wigton in Cumbria where he worked in Oh Calcutta! for 4 months; Edinburgh where he worked for a few months at the Raj restaurant in Leith then the Bangalore restaurant. After that he said he worked in Guildford and Haslemere in Surrey then at the Farringdon Indian Tandoori, in Oxfordshire.
7. He said that he had moved around so much because he did not have a National Insurance number so when people needed him they employed him and when they were able to employ genuine people with NI numbers they would stop employing him. He said that the longest time he worked in any one place was in Mumbles in Newport, where his witness was from. From January 2007 until now he had lived at a friend's house in Birmingham.
8. Mr Hussain said that he had made many friends: most of them Bangladeshi. The bosses at the places where he worked were friends. Otherwise he said he spent his time surfing the internet on his laptop looking at Bangladeshi newspapers, or looking up the Home Office website to see information about his application. He said that he was on the electoral role and had voted once. He had applied for a NI number.
9. In answer to questions from the Presenting Officer he said that he had arrived in the United Kingdom on the 7 th April 1991. He came as a visitor and said “then there was a political problem so I delayed my journey and I liked this country so I stayed. My uncle travelled here with me but did not settle in the United Kingdom: he went on to USA. I Iived with various people then got jobs. I knew that I was illegal. Some of my friends knew that I was here illegally, so did the restaurants where I worked, and Abu Bakar my witness here today. Some of them advised me to make a claim for settlement. I used an alias in 2001 because I was told that if you use genuine details then people will catch you so I was scared. I have seen a doctor in the time I have been here. I once went to hospital. I have a doctor's card I registered about four years ago.
10.Asked about the evidence of his time spent here he said that he was paid in...
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