The decision

Heard at: Field House

On 13 July 2004

MD (14 years not disproportionate) Bangladesh [2004] UKIAT 00208


Date Determination notified:

......29th July 2004.......


Mr J Perkins
(Vice President)
Mr T A Jones
Ms S S Ramsumair JP







1. Before us, the appellant, herein after as “the Secretary of State”, was represented by Ms J Donnelly, a Senior Home Office Presenting Officer, and the respondent, hereinafter “the claimant”, was represented by Mr M Schwenk of Counsel, instructed by David Gray & Co, Solicitors.
2. The claimant is a citizen of Bangladesh. He was born on 30 June 1959 and so is now 45 years old. In a determination as promulgated on 6 August 2003 the Adjudicator, Mr W C Coates, allowed his appeal against the decision of the Secretary of State that removal was not contrary to his rights under the European Convention on Human Rights. It is against that decision that the Secretary of State appeals.
3. The appellant arrived in the United Kingdom as a visitor on 31 March 1990. He did not leave when his permission to be in the United Kingdom came to an end. He overstayed and started work. On 5 February, 1996 he married at Liverpool Registry Office. He and his wife had taken part in an Islamic marriage ceremony a few weeks before at a Mosque in Liverpool. On 28 March 1996 the appellant applied for permission to remain on the basis of that marriage. This was the first contact he had with the respondent after he had entered the country in 1990.
4. On 2 January 1997 the claimant was told that his application to stay on the basis of his marriage was unsuccessful and he was issued with a Notice of Intention to deport. He appealed against that notice and the appeal was dismissed on 26 June 1997. He applied for permission to appeal further and that permission was refused by the Tribunal on 24 November 1997. There are parts of his chronology that we find very significant. Firstly the claimant lived in the United Kingdom without permission and without making any attempt to regularise his position for some five and a half years or thereabouts. When he did try and regularise his position he was unsuccessful. Just over nine months after he made his application to stay on the basis of his marriage he was given notice of a decision to deport him. He appealed that decision unsuccessfully and was told about eleven months after he had made his application that he could not appeal that decision any further. As Ms Donnelly quite rightly pointed out in submissions to us the claimant knew then and had known ever since that he had no right to be in the United Kingdom.
5. The claimant’s wife was born in Bangladesh. On 20 July, 1999, that is about three and a half years after the claimant applied to stay in the United Kingdom on the basis of his marriage to her, she became a naturalised British citizen. The claimant’s wife has a daughter, Sabrina, who was born on 15 October 1991. On 1 February 1997 the first daughter of the marriage, Sarmina was born. Another daughter, Amina was born on 17 January 1998 and a third daughter of the marriage, Nasrin, was born on 13 January 2001.
6. The claimant relied on an extra-regulatory policy developed by the Home Office known as DP5/96. Extraordinarily, given its importance to this case, neither party has produced a copy of this policy document. It was before the Adjudicator, and we have seen, a Home Office news release, dated 1 March 1999. This entitled “Immigrant families who have lived in the UK for seven years will be allowed to stay”. It continues “The Home Office changed the time limit under which immigrant families with young children can be forcibly removed from the country.” The news release then set out in a quotation from the Home Office Immigration Minister, Mr M O'Brien, in which he acknowledged the problems facing a child who had spent his formative years in the United Kingdom being uprooted to a different part of the world. It explained that the government was “changing the time limit from ten to seven years for families with young children who have been unable to establish a claim to remain”. It is plain from correspondence that this affected the Home Office policy document DP5/96, although that had itself been incorporated into a Policy Modification and announced by Mr O'Brien on 24 February 1999. According to a footnote in Butterworth’s Immigration Law Service at page D188 a letter dated 19 April 1999 from Immigration Service Headquarters explained that the concession applies to all enforcement cases including cases where only one parent is subject to removal either by deportation or as an illegal entrant. However the full text of the policy modification made it plain that each date must be decided on its own merits. It says: “For the purposes of proceeding with enforcement action in the case involving a child, the general presumption is that we would not usually proceed it with enforcement action in cases where a child was born here… however, there may be circumstances in which it is considered that enforcement action is still appropriate, despite the lengthy residence of the child, …” It then lists examples of such circumstances and lists factors that are generally relevant. It is quite clearly not the case that there is an unequivocal policy of allowing families to remain when children have been in the United Kingdom for seven years or more.
7. The Adjudicator does not appear to have been shown a full copy of the policy statement. He did consider very carefully the written answer of a minister that features in the news release. The Adjudicator decided that the child Sabrina was a child of the family. She had been in the United Kingdom for more than seven years and, following the case of Abdi [1996] Imm 148, the respondent’s decision was unlawful because he was not following his own policy.
8. The Adjudicator further found as a fact that, in the event of the claimant’s deportation, he could not apply for entry clearance for three years. The Adjudicator then went on to say that removing the claimant pursuant to a Deportation Order, if one were made, would be a disproportionate interference with the appellant’s “family right to life” (sic).
9. The Adjudicator decided that the claimant’s step daughter was within the scope of the policy.
10. The Adjudicator went onto find there were insurmountable obstacles to the children relocating to Bangladesh with their parents. He was particularly concerned about their prospects and standard of living in a country that they have never visited.
11. The Adjudicator was not impressed by concerns expressed about the claimant’s wife’s health. It was expected that she would need thyroid surgery. We have been told, and accept, that surgery has now taken place. The Adjudicator regarded “these illnesses as routine” and found that removal would not be disproportionate on medical grounds alone.
12. The Adjudicator was very critical of delay by the Home Office. He acknowledged that the claimant remained in the United Kingdom for six years without approaching the authorities but also noted that it took the Home Office some 4 years before deciding in January 2002 that the claimant could not take advantage of the policy because he was relying on the length of residence of a step child and a further year for the Home Office to start the relevant process. The Adjudicator said that the claimant should not be disadvantaged by the Home Office’s delay.
13. Paragraph 2 of the grounds of appeal complain that the Adjudicator was wrong to find that step children were within the scope of the policy. Paragraph 3 complains that the Adjudicator was wrong to decide the case as if a Deportation Order would be made. There was no evidence that that was the intention of the Secretary of State. Paragraph 4 complains that there were not insurmountable obstacles to the family going to Bangladesh. Paragraph 5 complains the Adjudicator had insufficient regard to the claimant’s “lack of candour”.
14. The adjudicator was clearly, and rightly, very concerned with the welfare of the claimant’s children. Their welfare is a very important consideration but it is not the only one. We do not agree with the Adjudicator’s comments at paragraph 80 of the determination that making a deportation order and so preventing (or, more correctly, making highly unlikely) readmission for three years would be a disproportionate interference with the claimant’s private and family life. Children are not a trump card that defeat an intention to make a Deportation Order, still less whose presence in the United Kingdom make removal disproportionate to the proper purpose of enforcing immigration control. However before us Miss Donnelly unequivocally undertook on behalf of the Secretary of State that, in the event of the appeal being allowed, there would be no question of the Secretary of State making a Deportation Order until the claimant had had time to remove with dignity voluntarily. In the circumstances there was no need to consider point three.
15. The parties also agreed that the Adjudicator was wrong to decide, following Abdi, that the Secretary of State’s decision was unlawful. This is an appeal under Section 65(1) of the Immigration and Asylum Act 1999. Only certain grounds of appeal are permissible in the case of an appeal brought under Section 65(1). An appeal can only be brought on the grounds that the decision complained of was the result of racial discrimination or in breach of human rights. Abdi concerned an Adjudicator’s powers under Section 19(1)(a)(i) and enabled Adjudicators in certain circumstances to decide that a decision was not in accordance with the law. It has no application in this appeal. This point was explained particularly clearly by Mr P R Lane VP in [2003] UKIAT 00083 A (Jamaica).
16. However Mr Schwenk submitted that the policy was still relevant for the purposes of a consideration of Article 8. The Secretary of State could not argue that removal was necessary in a democratic society when the Secretary of State decided that removal of children who had been in the United Kingdom for more than seven years was wrong. As far as it goes we see a great deal of merit in that submission but we find does not go far enough.
17. Mr Schwenk also submitted that we should consider the family’s circumstances at the date of decision and the claimant’s own eldest daughter had now been in the United Kingdom for seven years.
18. As indicated above we find that there are flaws in Mr Schwenk’s argument. Firstly, the policy does not say what Mr Schwenk wants it to say. It is not the case that removal is forbidden when children have been in the United Kingdom for more than seven years. There presence is something that the Secretary of State must consider but that is not the same as saying he can only conclude that removal is wrong. Secondly there is no intention to remove the claimant’s children. They are, or appear to be, British nationals. A policy designed to help the children of immigrant families does not necessarily assist the British children of an immigrant father. There is a very important difference in their circumstances. Where the mother and children are British Nationals the immigrant father can apply from outside the United Kingdom to join the members of his family that are settled within the United Kingdom. That does not apply in the case of an immigrant family where, for example, the wife and children have no status in the United Kingdom and the father cannot apply under the rules to join them.
19. We do agree with Mr Schwenk, and the adjudicator, that it is wholly unrealistic to think of the claimant’s children leaving the United Kingdom and going to Bangladesh. That is expecting too much of young people who are settled in the United Kingdom.
20. We can see no argument against a finding that refusing the claimant permission to remain in the United Kingdom is an interference with his private and family life. His family cannot be expected to join him in Bangladesh. If he is not given permission to remain, the decision will split the family.
21. We do not accept that it was open to the Adjudicator to find that such a decision would be disproportionate to the proper purpose of enforcing immigration control. We do not accept that the claimant’s long sojourn in the United Kingdom has been caused by inappropriate delay by the Secretary of State. The first irregular five years were caused by the claimant “going to ground”. It is not suggested that he acted covertly but in a free and open society, such as that presently enjoyed in the United Kingdom, people who choose to remain unlawfully stand a good chance of going undetected. That does not legitimise their stay in the United Kingdom. It is up to them to introduce themselves to the Secretary of State and ask for permission to remain, which is exactly what this claimant eventually did. We find it significant that the claimant was unsuccessful when he applied to stay. It went further than that. He was told expressly that he had no permission to remain and was told that a decision had been made to make him the subject of a Deportation Order. We do not agree with the Adjudicator that the claimant’s situation was somehow improved by the Secretary of State not making a deportation order. The fact is that the claimant knew that he did not have permission to remain in the United Kingdom. The fact that he chose to write letters asking to remain did not entitle him to remain. The fact that the Secretary of State is slow to make a deportation order cannot be used by the claimant to enhance his case.
22. We bear in mind that it is unfair to people who do not remain in the United Kingdom without permission, even when that is what they would like to do, to see people who choose to remain without permission prospering. Immigration control raises policy considerations that go beyond any particular claimant.
23. It is quite clear to us that this is not a case where the Secretary of State had to conclude that the claimant should be permitted to remain. Rather this is a case where the claimant’s removal is clearly within the Secretary of State’s discretion. The decision is not disproportionate to the proper purpose of enforcing immigration control.
24. In the circumstances, we allow the appeal.
Jonathan Perkins
Vice President
13 July 2004