Tribunal decisions

The decision

MA (Seven Year Child Concession) Pakistan [2005] UKIAT 00090

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 29 November 2004
Date Determination notified:
22 April 2005

Before:

Mr C M G Ockelton (Deputy President)
Dr H H Storey (Vice President)
Ms C Jarvis (Vice President)

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

Appearances: Ms A Weston of Counsel instructed by George Warsi Solicitors for the appellant; Mr P Deller, Home Office Presenting Officer, for the respondent.

DETERMINATION AND REASONS

1. The appellant is a national of Pakistan. He appeals against a determination of Adjudicator, Miss Lynne Thornton, notified on 14 October 2003, dismissing his appeal against refusal of leave to enter on human rights grounds.

2. The appellant had first come to the UK in 1989 as a visitor. For some period of time he had then held a multiple entry visit visa. On the last of his return journeys in January 1999 when he was in possession of what was described as a two month business visa, the Immigration Officer refused him leave to enter and granted him temporary admission. An appeal against the refusal of leave to enter was subsequently withdrawn. On 21 June 1999 the appellant made an application for exceptional leave to remain.

3. In a document dated 15 July 2002 the Secretary of State concluded that to refuse this application would not interfere disproportionately with the right to respect for his private life or his family life. The appellant appealed.

4. The Adjudicator upheld this decision. She did not consider that there were unusual or exceptional circumstances justifying the failure of the appellant to comply with the Immigration Rules. Furthermore, she considered that the respondent had properly concluded that the appellant did not fall within the parameters of the Long Residence Concession (LRC) (DP 5/96) or the Seven Years Child Concession (SYCC).

5. In assessing the appellant's Article 8 claim, the Adjudicator balanced in his favour that he had set up his company, Eagelink Ltd, in June 1991, bought a house in Rotherham in March 1996 and that all his children had been born and educated in the UK and had, since the refusal decision in 1999, lived in the UK continuously. She further noted that the appellant had other relatives living in the UK, forming an extended family and there were also letters of support from a number of persons. She also appeared to accept he had never been involved in any form of criminal activities and had never been a burden on the state.

6. She did not, however, consider these considerations outweighed those counting against him. She specified here the fact that the appellant used deception in order to obtain his multiple entry visa and the fact that he had been equivocal about his intentions, stating on the one hand that there had never been any intention to establish himself in the UK, yet on the other hand, when putting his Article 8 case, claiming that his family life in the UK was well-established, as evidenced in particular by his children being settled into school in the UK.

7. The Adjudicator also considered whether delay in the respondent's processing of the appellant’s application was a factor weighing in his favour. She decided it was not. She noted that the appellant had withdrawn his appeal against refusal of leave to enter in June 1999 and had not raised Article 8 until 25 April 2002.

8. The Adjudicator also rejected the appellant's claim that the decision was rendered disproportionate by the fact that removal of the family would prevent them from visiting the grave of his wife’s stillborn child born in 1996. In relation to the other children, she did not accept that English was the only language they spoke at home and she considered that, by virtue of the fact that the elder children had a pattern of spending 8-12 weeks a year in Pakistan prior to 1999, they had retained ties with that country.

9. The appellant's business involvement was not seen to count very much, if at all, in his favour. The appellant knew when he set it up that he did not have entry clearance to remain in the UK, the only direct employee was his wife and the evidence that other companies depended on the work generated from Eagelink was mixed. She also saw no reason why the appellant could not conduct his business from Pakistan.

10. The grounds of appeal highlighted the fact that the appellant had built up his business in the UK over fourteen years, his speciality being to use his knowledge of particular business requirements of companies abroad to find buyers of otherwise unsaleable waste paper. His company had been listed in the “Who’s Who of British Excellence of 2002”. He was a taxpayer and a number of persons owed their employment to the business generated by him. The grounds disputed the Adjudicator's finding that he had used deception in dealings with the immigration authorities. He had come to the UK in 1989 as a visitor, had held a multiple entry visa for business purposes and had ensured on each occasion that he left the UK prior to the expiry of the entry clearance period of visitor leave, either for a holiday or for business purposes.

11. Against this background, the grounds contended firstly that the Adjudicator had misdirected herself as to whether the decision of the Secretary of State was “in accordance with the law” (within the meaning of Article 8(2)); and secondly that her conclusions as to proportionality were not reasonably open to her. In respect of both of these submissions it was further maintained that the Adjudicator had failed to make findings on all relevant matters of fact and had failed to take into account all relevant evidence.

12. The first submission centred on the alleged error of the Adjudicator in considering that the appellant and his family could not benefit from the Secretary of State's Seven Years Child Concession. The Adjudicator, submitted Ms Weston, had also wrongly applied a test of “unusual or extraordinary circumstances” for success under Article 8 on the part of someone who could not meet all the requirements of the Immigration Rules.

13. In support of her first submission, Ms Weston prayed in aid the principle set out by the Court of Appeal judgment in D S Abdi [1996] ImmAR 148.
14. We do not see that principles set out by the Court of Appeal in D S Abdi have direct application in this case. That judgment concerned the “in accordance with the law” jurisdiction arising under s.19 of the Immigration Act 1971 as amended and as subsequently maintained in paragraph 21(1)(a) of Schedule 4 to the 1999 Act. By paragraph 21(2) of that same Schedule, that jurisdiction is made “subject to ... any restriction on the grounds of appeal”. As Ms Weston properly conceded, the appeal in this case was brought solely under s.65 (1) and thus was restricted to human rights grounds. Matters are of course different under the Nationality, Immigration and Asylum Act 2002, which applies an “in accordance with the law” requirement to all immigration decisions: see s.84 (1)(e). But this was not an appeal under the 2002 Act.

15. Ms Weston’s fallback submission was that D S Abdi principles still nevertheless applied directly in the context of the identically worded requirement set out in Article 8(2) of the ECHR that any interference with a right protected under Article 8(1) be “in accordance with the law”. Her argument here was in two stages. “Law” in the context of Art 8 was, she said, a term which had to be given an autonomous and broad definition. In addition, if the Home Office failed to consider a person under an applicable concessionary policy, the relevant decision could not be said to be “in accordance with the law”.

16. It is not necessary in this case to decide precisely what points of difference exist between paragraph 21(1)(a) of Schedule 4 to the 1999 Act on the one hand and the relevant part of Article 8(2) on the other. We can easily agree with the first-stage of Ms Weston`s argument that under both the term “law” has a wider meaning than primary and secondary legislation and can cover extra-statutory governmental policies and guidelines: Silver v UK (1983) 5 EHRR 347, Malone v UK (1985) 7 EHRR 14, Govell v UK (14 January 1998); noted at [1999] EHRLR 121.

17. However, the second stage of Ms Weston`s argument is more problematic. In Strasbourg jurisprudence the `in accordance with the law` requirement has essentially been seen to embody the principle of legality, itself seen as comprising three rules: identification of a basis in law, accessibility and certainty. As the Tribunal has noted in KK [2004] 00268, the jurisprudence of the European Court of Human Rights thus requires that governmental policies are sufficiently accessible and precise so as to enable citizens to regulate their conduct by it. But we do not think she wished to argue that the Seven Years Child Concession lacked sufficient accessibility and precision. And had that been her argument we would have rejected it straightaway: the SYCC was a published policy which contained identifiable criteria: it was thus accessible and precise.
18. Ms Weston’s argument was really about a somewhat different point, namely that “in accordance with the law” under Art 8(2) encompassed the same principle of administrative law as set out in D S Abdi – that decision-makers were under a duty to apply the law (including law as founding the form of governmental policies). Here there is this difficulty. We would accept it is arguable that the principle of legality includes the principle that decision-makers should apply (as well as properly identify) the law in this broad sense. But we are not prepared to accept without more that Strasbourg has seen the principle of legality to extend that far in the context of Art 8(2). Ms Weston produced no authority in support of this contention. That being so, we do not accept that Art 8(2) can be said to encapsulate precisely the same principles as those set out in the context of UK Immigration Acts in D S Abdi.

19. In any event, even were we to accept Ms Weston’s submission we do not see that it assists her case one jot. It is perfectly plain in the case of this appellant that the Home Office considered the appellant under both of the potentially applicable policies DP 5(96) and the Seven Years Child Concession in particular. Later on we will explain why we were not persuaded by her submission that these policies were not extended to port cases.

20. Furthermore, it does not seem to us that Ms Weston needs to rely on her “in accordance with the law” argument in order to be able to run her principal argument, namely that the decision under appeal breached Art 8 because it failed to appreciate that the appellant and his family met the requirements of the Seven Years Child Concession. In our view although the terms of the refusal letter of 15 July 2002 dealt separately with DP 5/96 and the SYCC considerations on the one hand and Art 8 considerations on the other, it effectively viewed the latter as involving a balancing of the same kind of factors in favour of the appellant (in particular the strength of his family and private life connections with the UK) and against the appellant (his history of immigration deception). It was certainly implicit in the decision that if the appellant could succeed in showing he met the requirements of the Seven Years Child Concession he would be also entitled to succeed on Art 8 grounds.

21. Since the appellant’s appeal turns largely therefore on whether in fact he met the requirements of the Seven Years Child Concession it is appropriate to set out the text of this policy. A footnote to its text explains that it came into being on 24 February 1999 and that it implemented the incorporation of old DP 5/96 into published caseworking instructions of the new Integrated Caseworking Directorate with the modification that references to ten years in DP 5/96 had now to be read as references to seven years: hence the square brackets. So far as we understand this footnote, it means that the extext of the SYCC is identical as that of DP 5/96 save for the (square-bracketed) alteration of the qualifying period from 10 to 7 years. It reads:

‘Deportation in cases where there are children with long residence: Policy Modification announced by Under-Secretary of State for the Home Department Mr O’Brien on 24 February 1999

3.1 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all the cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:

the length of the parents’ residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
the age of the children;
whether the children were conceived at a time when either of the parents had leave to remain;
-whether return to the parents’ country of origin would cause extreme hardship for the children or put their health seriously at risk;
-whether either of the parents has a history of criminal behaviour or deception.

3.2 It is important that full reasons are given making clear that each case is considered on its individual merits.’

22. There was also a Home Office press release issued on 1 March 1999 concerning this statement: headed ‘Immigrant Families Who Have Lived in the UK for 7 Years will be allowed to stay’, it reads:

‘A child who has spent a substantial, formative part of life in the UK should not be uprooted without strong reason and that is why we are changing the time-limit from ten to seven years for families with young children who have been unable to establish a claim to remain.

We are committed to delivering a system of immigration control which is firm but also fair. Those who are not entitled to be here should be removed.

However for those who have been in this country for a long time we need to recognise that they will have become established in their community.’

23. We have already held that the Secretary of State consider the appellant under the policy the Seven Years Child Concession. However, it was part of Ms Weston’s submission that in reality he had not done so because he considered this policy only applied to deportation and removal cases, not to port cases.

24. We see nothing in this part of her submission. It is true, that in a Supplementary Statement of 23 June 2003 dealing with the case of this appellant the Secretary of State appeared to imply that the Seven Years Child Concession, like the Long Residence Concession related solely to those who were the subject of enforcement action. (We would also note that in Dabrowski [2002] EWHC 2183 (Admin) Rafferty J rejected a contention that the Seven Year Child Concession formally applied to port cases). However, the same statement had gone on to say that it was nevertheless the practice for the respondent to apply both policies when assessing whether to refuse leave to enter. To all intents and purposes, therefore, the Secretary of State looked at the appellant's case under the Seven Years Concession policy. In determining whether the respondent properly decided the appellant did not meet the criteria of this policy, the Adjudicator in turn did not treat the fact that the appellant’s case was not an enforcement case as a disqualifying factor.

25. Miss Weston’s principal submission, however, was that to the extent that the Secretary of State did consider the appellant under the Seven Years Child Concession, the Adjudicator should have recognised that he went about it in the wrong way. In particular she submitted that the Adjudicator had been wrong to agree with the respondent in finding that the appellant had failed to meet one of the requirements of this policy by practising deception in his dealing with the immigration authorities. We resoundingly reject this submission. On the evidence before the Adjudicator the appellant's lack of candour with the immigration authorities did amount to deception.

26. Dealing first with those instances of lack of candour relied upon by the Adjudicator, we consider she was entirely justified in noting that he had failed to declare his or his family’s ownership of a home in the UK or the existence of his UK company and had failed to disclose when asked how long he would stay in the UK or what was to be his family’s actual UK address. There was also a failure to give all the dates and lengths of previous stays in the UK. When stopped in January 1999 the appellant had misrepresented that his wife and children accompanied him on all his business trips: it transpired that his children had been born in the UK and his son attended school in Rotherham. The Adjudicator gave careful consideration to the appellant's explanations for these failures and justifiably found them wanting: see paras 19-21.

27. The second main basis on which Ms Weston argued the Adjudicator had wrongly agreed with the respondent's refusal to find that the appellant and his family met the criteria of the Seven Years Child Concession concerned the Adjudicator's treatment of the proportionality issue. Her submissions ranged over a number of factors but can be summarised as: reliance upon the strength of the family’s private and family life ties in the UK side-by-side with a contention that there was no state interest in this case in the maintenance of effective immigration control.

28. We consider that all the arguments reliant upon the appellant’s family and private life ties with the UK founder on his own attempt to maintain that he has always acted in accordance with the requirements of the Immigration Rules relating to visitors. Those rules presuppose an intention to remain in a temporary capacity only. Thus for some ten years (between 1989 to January 1999) he himself has maintained that everything he had his family did in the UK was with the intention of being in the UK only temporarily and being ready to depart periodically. Thus, his and his family’s links with the UK, his dealings in the course of business, his family’s personal relationships with the community, his children’s schooling – all these factors had to be viewed in this light. We would accept that as from January 1999 he and his family, when they were granted temporary admission, have been in the UK continuously. But he and they have always known that their immigration status rested on a temporary basis.

29. Ms Weston contended that the appellant and his family were entitled to have weighed in their favour the fact that that there was a significant delay between the appellant's application for leave to remain based on Article 8 (made in June 1999) and the eventual refusal decision (made on 15 July 2002). In the grounds she cited in support the Court of Appeal judgment in Shala [2003] EWCA Civ 233.

30. Permission to appeal was not given in relation to the Shala point as such, but since we accept that in assessing proportionality delay may in some cases be a relevant circumstance, we shall consider whether delay should have been viewed as a significant factor in this case. The Adjudicator addressed the issue of delay and found it was not a significant factor. We agree. There was no real case that was bound to succeed in 1999 but which was defeated by any delay. Furthermore, even if the entire period of delay were considered to be the fault of the Secretary of State, it only amounted to just over three years. In the context of what by June 1999 had become an application based on consideration outside the Immigration Rules, we do not consider such a period was excessive or that it was detrimental to any of the essential interests of the appellant protected by Article 8.

31. The fact that the appellant and his wife had had to deal in 1996 and thereafter with the tragedy of a stillborn child was a factor considered by both the respondent and the Adjudicator. Whether or not the suggestion at one point by the respondent that remains of the child be re-interred in Pakistan was culturally insensitive (as alleged by Ms Weston), the Adjudicator was quite right to observe that the couple had known at the time that his wife was only here as a visitor when she gave birth to the child.

32. As regards the other children, the text of the Seven Years Child Concession specifies as a relevant factor “whether return to the parents’ country of origin would cause extreme hardship for the children or put their health seriously at risk.” Plainly the Secretary of State did consider whether return of the children in this case met this criterion. So did the Adjudicator. In our view she was quite entitled to assess matters as she did. Even were the fact of their immigration difficulties to be put to one side, we cannot see that she erred in concluding that they were still of a relatively young age (she noted at paragraph 29 that at the date of hearing the two eldest were still only to be eleven and nine on their birthdays that month). Plainly they were therefore of adaptable age. Furthermore, she found, properly in our view, that none of them would have serious difficulties in adjusting to life in Pakistan, since the elder children had spent some albeit short periods of time in Pakistan prior to 1999 but had also, on the evidence, acquired and maintained an ability to speak some Urdu at home.

33. As regards the fact that the appellant's children had become settled in school and were thus settled into life in the UK, these were developments which had taken place without the appellant taking steps, as he was required to do, to disclose to the UK authorities that his children were attending school in the UK or that their principal country of residence had become the UK. Furthermore, any reference to their being `settled` had to be viewed in light of the appellant’s own insistence that at all times he and his family intended only temporary stay in the UK. In any event it was not seriously arguable that they could not resume their education in Pakistan.

34. As regards the appellant's reliance on his own private life connections formed in the context of his business activities, we would first of all reiterate that these connections were plainly only able to develop as a result of his deceptive conduct vis-à-vis the UK immigration authorities. In this regard it is important to bear in mind the requirements of the Immigration Rules HC 395 relating to visitors, including business visitors. These state:

’Requirements for leave to enter as a visitor
40. For the purpose of paragraphs 41-46 a visitor includes a person living and working outside the United Kingdom who comes to the United Kingdom to transact business (such as attending meetings and briefings, fact finding, negotiating or making contracts with United Kingdom businesses to buy or sell goods or services). A visitor seeking leave to enter or remain for private medical treatment must meet the requirements of paragraph 51 or 54.

41. The requirements to be met by a person seeking leave to enter the United Kingdom as a visitor are that he:

(i) is genuinely seeking entry as a visitor for a limited period as stated by him, not exceeding 6 months; and

(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and

(iii) does not intend to take employment in the United Kingdom; and

(iv) does not intend to produce goods or provide services within the United Kingdom, including the selling of goods or services direct to a member of the public; and

(v) does not intend to stay at a maintained school; and

(vi) will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends; and

(vii) can meet the cost of the return or onward journey.

Leave to enter as a visitor
42. A person seeking leave to enter the United Kingdom as a visitor may be admitted for a period not exceeding 6 months, subject to a condition prohibiting employment, provided the Immigration Officer is satisfied that each of the requirements of paragraph 41 is met.

Refusal of leave to enter as a visitor
43. Leave to enter as a visitor is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 41 is met.

Requirements for an extension of stay as a visitor
44. Six months is the maximum permitted leave which may be granted to a visitor. The requirements for an extension of stay as a visitor are that the applicant:

(i) meets the requirements of paragraph 41(ii)-(vii); and
(ii) has not already spent, or would not as a result of an extension of stay spend, more than 6 months in total in the United Kingdom as a visitor.

Any period spent as a seasonal agricultural worker is to be counted as a period spent as a visitor.

Extension of stay as a visitor
45. An extension of stay as a visitor may be granted, subject to a condition prohibiting employment, provided the Secretary of State is satisfied that each of the requirements of paragraph 44 is met.’

35. From the above it is clear that the visitor rules do permit persons to transact business whilst in the UK. Equally, however, they plainly forbid a person in a visitor capacity to produce goods or provide services within the UK. Yet that is precisely what the appellant did by setting up his own company and trading in the UK. That he did not make a secret of his business activities in his dealings with some official bodies in the UK (indeed had his company listed in a 2002 publication) does not alter the fact that he failed to disclose a clear breach of the Immigration Rules to the immigration authorities, contrary to the legal obligation on him to do so. (We would observe that his wife also appears to have breached visitor requirements by becoming employed in his business).

36. Furthermore, as the Adjudicator properly found, he had adduced no evidence as to any direct employees other than his wife. It may be that the Adjudicator should have recognised the indirect value of the appellant's business activities to the UK economy (alleviating net loss of employment in a depressed area), but we cannot see that on any estimate these have had a large-scale impact. In our view the Adjudicator was entitled to consider that in any event there was no reason why the appellant could not conduct his business from Pakistan.

37. Essentially, therefore, the appellant did not have strong family or private life ties in the UK of a nature entitling him to claim that his removal from the UK would disproportionately interfere with them.

38. Turning to the other side of the balance underlying the proportionality test arising under Article 8(2), we do not accept Ms Weston’s submission that this was not a case in which there were weighty reasons to do with the maintenance of effective immigration control to be counted against the appellant. Insofar as Ms Weston sought to rely on ex parte Jagot [2000] INLR 501 we are not persuaded in the first place that it is on all fours. In that case the issue before Moses J was whether there was a strong reason under [what he thought was] the Seven Years Child Concession to disrupt the applicant’s existing and established ties with his grandparents who had looked after him for most of his life (see para 38). In this case, by contrast, there has never been a question of a disruption of the appellant and his family unit: they either go together or stay in the UK together.

39. Even if it were thought that ex parte Jagot had application to this case, we do not consider that Moses J intended to say that under “policy 069/99” the requirements of immigration control were irrelevant. We accept that he said at paragraph 39:

‘It is difficult to understand how the requirements of immigration control can play any significant part in adding to the strength of the reason for disruption. It is inherent in policy 069/99 that there has been a breach of immigration control.’

40. But in the case before him there were no immigration control factors given in justification other than the normal interest of the Secretary of State in a firm system of immigration control. In this case, however, there were immigration control factors over and above the normal: in particular, there was the history of the appellant's deception.

41. That Moses J’s words are not to be read more widely is confirmed, in our view, by his own agreement at the outset of his judgment with the overriding principles set out by the Court of Appeal in Gangadeen and Khan [1998] INLR 206 which considered a policy known as DP 4/96, a precursor to the Seven Years Child Concession. As Moses J noted:

‘The court concluded that in applying such a policy, which it described as guidance and not a rigid instruction, the Secretary of State must conduct a balancing exercise in which the considerations of the interests of the child on the one hand and the considerations of immigration policy and control on the other must be weighed... . It was of the view: “... that the court should be very slow to interfere with the Home Secretary’s decision not to grant what is essentially a concession on extra-statutory grounds.”.’

42. We would also observe that in our view Moses J appears not to have had his attention drawn to the actual text of the Seven Years Child Concession. What he cites as “policy 069 99” is in fact a mere press release (as noted in MD (14 years not disproportionate) Bangladesh [2004] UKIAT 00208). We have set out the full text of this press release at paragraph 20. It is immediately obvious from reading it that it does not set out the criteria of the policy in full. In particular it makes no reference to the stipulation that there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child. So far as we are aware, there has never been a “policy 069/99”. Plainly a press statement cannot be read independently of the text of the policy which it describes. As can be seen, the latter does not treat immigration control factors as irrelevant.

43. In the light of that feature of ex parte Jagot, we think that parties would do well to exercise caution when seeking to rely upon it as an authority on the application of the SYCC.

44. We consider that in this case it was open to the Adjudicator (following the Secretary of State) to assess that the relevant factors to be balanced under the policy did not justify granting its concession to him. Even if understood as creating a presumption that length of residence would qualify, that was clearly rebutted in this case the seriousness of the appellant’s immigration deception.

45. We would observe in passing that it is not even entirely clear to us that at the date of decision the appellant and his family fulfilled other essential criteria for the Seven Years Child Concession. In particular, it is not entirely clear that any of the children had the requisite period of residence. Even if the Adjudicator was wrong to exclude periods broken by absences in Pakistan (because they were less than six months), it remained the case that the relevant period that had to be considered was restricted to dates before 9 January 1999. The eldest child had been born in the UK on 28 October 1992; the second eldest on 13 October 1994; and the two younger had been born also in the UK on 12 December 2001 and 13 October 2004 respectively.

46. But what about the position at the date of hearing before the Adjudicator? Ms Weston submitted that in the context of Article 8 it was necessary to consider not just the length of residence at the date of decision, but that which had accumulated at the date of the hearing. In this regard she relied on SK (Return – Ethnic Serb) Croatia CG* [2002] UKIAT 05613.

47. Plainly we are not entitled except where there is a material error of law to consider residence accrued since the Adjudicator notified her determination; this is an appeal under the 2002 Act and late facts are not relevant: see CA [2004] EWCA Civ 1165.

48. We would accept that in the context of Article 8 the Adjudicator was obliged by the terms of s.77 (4) to have regard to the further length of residence acquired between the date of decision and the date of hearing. However, that is what she did, concluding at paragraph 28 that, even taking this into account, the residence factor was still outweighed by other factors. We see no error here.

49. By the hearing there was clearly a further length of residence to be taken into account, but we do not consider it sufficiently lengthy to overcome the weighty interests in the maintenance of effective immigration control arising out of the very extensive history of deception on the part of the appellant in this case.

50. Mr Deller reminded us during his submissions of the principles set out in M (Croatia)* (Croatia) [2004] UNLR 327. He submitted that in a case such as this, where the Secretary of State had conducted the balancing exercise under Article 8, an Adjudicator could not interfere with his decision unless it was within the range of reasonable responses. That is how we have approached this case. But we would point out that, even had we approached it on the basis that the Adjudicator was entitled to undertake that balancing exercise herself, we would have reached the same conclusions. Indeed for the reasons we have given we regard it as inconceivable that the Adjudicator could have reached a contrary decision.

51. Accordingly we do not consider that the Adjudicator’s determination discloses any material error of law. She was quite entitled to conclude that the appellant had failed to show that the decision refusing her exceptional leave to remain on human rights grounds amounted to a disproportionate interference with his right to respect for family and private life. The Adjudicator properly found that the appellant could not benefit from the terms of the SYCC whether considered at the date of decision or the date of hearing. Both under the SYCC and under Art 8 there were no exceptional circumstances to override the very considerable interest of the Secretary of State in effective immigration control being maintained in this case.

52. We should mention finally that we have considered the position of the appellant's children on the basis that, although born in the UK, the practical effect on them of the decision refusing the appellant leave to remain is that they will return to Pakistan along with their parents. Ms Weston said she did not know whether there were applications in train for the eldest two to seek to remain on the basis of their birth in the UK, in combination with a ten year period of residence; but even if there were, that is not an issue in this appeal.

53. For the above reasons this appeal is dismissed.

H.H. STOREY
VICE PRESIDENT