Hoosha Kumari Hanif v. Secretary of State for the Home Department
- Author: Immigration Appeal Tribunal
- Document source:
-
Date:
9 April 1985
HOOSHA KUMARI HANIF v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1985] Imm AR 57
Hearing Date: 9 April 1985
9 April 1985
Index Terms:
Deportation -- overstayer -- whether knowledge of overstaying is necessary for overstayer to become liable for deportation -- whether ignorance of overstayer is a compassionate circumstance to be taken into account in an appeal against deportation -- whether factors not known to the Secretary of State can be taken into account by the appellate authorities -- whether a review of a decision by the Secretary of State constitutes a second decision where the first decision is maintained -- Immigration Act 1971 s 3(5)(a): HC 169 paragraphs 156, 158.
Held:
The appellant was admitted to the United Kingdom as a student. An application for an extension of leave as a student was refused and not appealed. A month after that refusal the appellant went through a civil ceremony of marriage with a British citizen. That was a bigamous marriage so far as the appellant's partner was concerned. At the date of the ceremony the appellant was not aware of that. The appellant's partner was subsequently convicted of bigamy and the appellant formed an association with another person. That association was not known to the Secretary of State at the date of his original decision to initiate deportation proceedings and the adjudicator refused to take it into account. It was known to the Secretary of State when he subsequently reviewed that decision and maintained it. Held: 1) That the liability to deportation set out in s 3(5)(a) of the Immigration Act 1971 is not restricted to those overstayers who knowingly overstay. 2) Ignorance by a party that they have overstayed is a compassionate circumstance to be taken into consideration under HC 169 paragraph 156. 3) On the settled authorities the adjudicator was correct not to take into consideration factors not known to the Secretary of State when he decided to initiate deportation proceedings. 4) When the Secretary of State reviews a decision he had already taken and maintains that decision, he does not make a second decision within the meaning of the immigration rules.Cases referred to in the Judgment:
Ramjaun (unreported) (3052). Kivrak (unreported) (3088) Ekrem Kandemir v The Secretary of State for the Home Department [1984] Imm AR 137. Selliah Balasingham Ranganathan v The Secretary of State for the Home Department [1984] Imm AR 247.Counsel:
K Drabu for the appellant; P Curwen for the respondent. PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq (Vice-President), Dr S TorranceJudgment One:
THE TRIBUNAL: The appellant, a citizen of Guyana, appeals against the decision of an adjudicator (IMS Donnell Esq) dismissing her appeal against the decision taken on 27 March 1984 to deport her by virtue of the Immigration Act 1971, section 3(5)(a). Scope of section 3(5)(a) The provision reads: "A person who is not parital shall be liable to deportation from the United Kingdom: (a) if, 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." Mr Drabu argued that the power to deport under this provision required knowledge of remaining beyond the time limited by the leave. The pattern of the Act was clear, said Mr Drabu, providing for the knowledge of a person subject to immigration control of the conditions applicable to that person. Notice was required to be given of terms of entry and of conditions on any variation of the leave granted on entry. However, in our view, the requirements of notice do not lead to any conclusion that knowledge of overstay is required for deportation under section 3(5)(a). The statutory provision is as clearly worded as are the provisions requiring notice. The basis of immigration control is admission through the granting of leave and the concomitant of that is that lack of leave means that the admission may be terminated on the basis that the authority for being in the country does not exist. The blunt operation of the principle is qualified by the mandatory direction that in exercising the power specific factors (including compassionate circumstances) must be taken into account (see HC 169 paragraphs 158 and 156). It is at this stage and in this context that lack of knowledge will operate, and it is at that stage that we shall consider the question of lack of knowledge raised in this case. The background facts The appellant was first admitted to the United Kingdom on 4 September 1976 as a student with employment prohibited unless with the consent of the Secretary of State. She was given leave to enter for 12 months. On 25th July 1977 she applied for further leave to continue studies but the explanatory statement records that "after prolonged enquiries" the application was refused on 11 January 1979. Notice of refusal was served on the appellant on 23 January 1979. The appellant did not appeal. On 23 February 1979 the appellant went through a marriage ceremony with a Mr Mohammad Hanif a British citizen. She made no application to remain by virtue of this marriage. However, when the marriage became known to the Secretary of State through enquiries in relation to the appellant's overstay, no action was taken by the Secretary of State as, according to the explanatory statement, the appellant "was considered a patrial as the result of her marriage". On 5 May 1983 -- again according to the explanatory statement -- Mohammad Hanif was convicted of (amongst other offences) two counts of bigamy. The "marriage" to the appellant was bigamous. On 19 January 1984, the explanatory statement continues,"The Home Office wrote to the appellant stating that as she had remained in the United Kingdom without authority since 21 February 1979, she was liable to deportation, and that as her marriage was bigamous, it gave her no claim to remain under any of the Immigration Rules. The appellant was told that, unless she applied immediately to regularise her stay, she was expected to leave the United Kingdom immediately. The appellant did not reply to this letter, neither did she embark."
The decision to make a deportation order was taken on 27 March 1984 and it was indicated that it was proposed to remove the appellant to Guyana. The appellant appealed against the decision and the proposed removal directions. The grounds of appeal were:"On 23rd February 1979, I married Mr Mohammad Hanif (a British citizen) at the Ealing Register Office (marriage certificate number TC 484522) which I believe entitles me to reside here in Britain."
By letter, dated 27 July 1984, the United Kingdom Immigrants Advisory Service asked that the case against the appellant be reconsidered in the light of an association she had formed with Mr Brian Hobson. According to a statement, dated 24 July 1984, by Mr Hobson he was -- and is -- a British citizen, and he and the appellant had lived together since May 1982. They had not married, said Mr Hobson, because they had thought that the appellant was married, Mr Hobson had doubts about marriage stemming from hsi experience of being married before, there was some friction between his children by his earlier marriage and the appellant. By letter in September 1984 the Secretary of State rejected the request: "The Secretary of State has given further consideration to Miss Hanif's case in light of her two year association with Mr Hobson, but this relationship gives Miss Hanif no claim to remain and there are insufficient grounds to allow her to remain exceptionally. The hearing of Miss Hanif's appeal, which is set down for 14 October 1984, will now proceed." In evidence the appellant said that she did not appeal against the refusal to extend her leave as a student because she got married, and she did not inform the Home Office of her marriage as her husband said it was not necessary to do so. The marriage was happy, she said, but in cross-examination when she was asked "was your marriage one of convenience?" she replied "I loved him as well". She said that in December 1979 her husband told her to say that they had never been married. She did not know why he said this. In 1983 she was served with a summons to give evidence in a bigamy case concerning her husband. Nevertheless she said that she did not know until she got the explanatory statement in these proceedings that he had been convicted of bigamy. She said that after her husband had left her she was taken to Southall Police Station where she was told she could stay in this country. The appellant said that she did not receive the Home Office letter of 19 January 1984 as she was then living with Mr Hobson and not at the address to which the letter was sent. She said she did not know that she could not work under the terms of her initial leave. She added that she helps with charities and has not been in trouble with the police. The association with Mr Hobson -- can it be taken into account? The admissibility of evidence concerning the association depends on the interpretation of HC 169 paragraph 158; this reads:"158. Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached."
Before the adjudicator, both the appellant and Mr Hobson gave evidence and in his determination the adjudicator dealt with the association and its relevance to the appellant's immigration status. The adjudicator expressed the view that the appellant had no claim to remain because of the association. He had doubts as to the permanence of the association and thought that the appellant was not a dependant of Mr Hobson but a nearly equal partner. Further, the adjudicator held that permanent association had no place in applications to remain after entry. However, the adjudicator went on to hold that the association with Mr Hobson could not be taken into account as a factor in this case -- it was not known to the Secretary of State when he reached his decision to make a deportation order and further, the reconsideration of that decision did not amount to a fresh decision. Mr Drabu argued that the Tribunal in its past decisions had been wrong in principle in holding that the phrase "known to the Secretary of State" in paragraph 158 meant that no evidence could be admitted on appeal of factors not known to the Secretary of State at the date of decision. The approach of the Tribunal, said Mr Drabu, made a mockery of the appeal system. The decision of the Tribunal to which Mr Drabu referred are exemplified by Ramjaun, Kivrak and Ranganathan. We intimated to Mr Drabu that although naturally we would record his submissions we propose to follow the approach taken in those decisions. Any challenge to the view must be made in the High Court. If the rule is drafted so as it makes a mockery of the system which operates the rule then in our view that is a matter for representations to Parliament and attention by that body. Mr Drabu further argued that the decisions were wrong, or at least inapplicable, where, as here, there had been a reconsideration of the initial decision. Mr Drabu pointed to the wording of paragraph 158 in that it focuses not on "the decision" but on "a decision". In this case, said Mr Drabu, a decision was taken on 27 March 1984 and a further decision on 21 September 1984. We agree that what initially might appear to be a final decision could, on the facts of any case, be "extended" so that the same decision-making process is not terminated until a date later than the initial decision. However, we follow the well-established Tribunal approach that reconsideration of a decision made by the Secretary of State following representations by an applicant and a subsequent maintaining of that decision does not of itself, mean that for the purpose of the immigration rules there are two decisions. In this case, in our view, there was one decision taken on 27 March 1984. It follows that it is matterless whether paragraph 158 refers to "a decision" or "the decision" -- for the references to a "decision" within the meaning of the rules and that is the focal point of the present Tribunal approach. We should say that we do not see this approach as based simply on an arid and technical linguistic interpretation. First there is to us a substantive difference between the taking of decision and maintaining that decision. There can hardly be a duty on the Secretary of State to consider representations made after a decision as part of the process leading to the earlier decision for this would mean a never-ending process. If there is no such duty but actual consideration as a matter of discretion would destroy the earlier decision it is hardly likely to encourage the exercise of that discretion in favour of an applicant. It follows that in our view no evidence was admissible of the appellant's association with Mr Hobson, that not being known to the Secretary of State at the date of decision, that date being 27 March 1984. The duty to be fair Mr Drabu next argued that the Secretary of State was in breach of the duty to be fair in respect of the appellant's marriage to Mohammad Hanif. The Secretary of State, said Mr Drabu, had accepted that as a result of the marriage the appellant was a patrial; and assuming that the marriage was valid the appellant would have been entitled to the right of abode. There had been no enquiry into the substance of the marriage in the context of the decision to make a deportation order. As Mr Drabu implied, the duty, which he alleges and which he alleges is broken, must be seen in the context of the decision to make the deportation order. There was never any application by the appellant based on the marriage either for a certificate of patriality or leave to remain. Whatever the duty on the Secretary of State it cannot remove the primary responsibility from an individual to initiate steps to ensure his or her immigration status in this country. In this case we are dubious that the appellant would not at least have been put on notice as to the possible validity of her marriage on receipt of a witness summons in February 1983 which, as she said in evidence, was to give evidence in "a bigamy case concerning my husband". Further, we think that she must have realised that the possible invalidity of the marriage could affect her right to remain. It is difficult to maintain that in considering the decision to make the deportation order the Secretary of State should have made further enquiries when no action was taken on the warning notes sent to the appellant at her last-known address in January 1984. Once again any duty to enquire cannot remove the primary responsibility of the appellant to ensure that her immigration status is regularised. In any event, if there was any omission in making desirable enquiries (which we do not believe there was) it was for the adjudicator and is now for us to examine the "marriage" and its consequences as factors in the context of the decision to make a deportation order. The adjudicator's approach In considering the appeal the adjudicator referred specifically to the factors specified in HC 169 paragraph 156 and to the appellant's immigration history. He indicated that, in his view, when the appellant stayed in this country after her application to remain as a student was refused she "must have been aware that she had no right to remain in this country permanently and she cannot found on her length of stay". As to her marriage, the adjudicator said "the appellant, in giving evidence, maintained that this marriage was a genuine one, but I think that there must be a doubt about that". The adjudicator concluded that the matters specified in paragraph 156 were not of sufficient weight to outweigh the normal course of deportation. Further, he added "it seems to me that the fact that the appellant has remained without authority means that it is in the public interest that she should leave but her position should be considered as against that of other persons in like circumstances who might wish to avail themselves of the opportunity afforded by entry to this country for the purpose of study to settle here without authority". Although Mr Drabu said that the adjudicator had no basis for his doubts about the marriage, we think that his comment was justified in the light of the appellant's equivocal answer in her evidence to the suggestion that the marriage was one of convenience. Mr Drabu further criticised the adjudicator's approach in saying that the adjudicator did not take into account factors applicable to the marriage and wrongly categorised the case as a simple example of the student who overstays. We agree with Mr Drabu that the case cannot be seen solely as one in which a student overstays, but has its own special characteristics -- in particular the marriage. We approach the balancing of the public interest and the compassionate circumstances with these factors in mind. The application of HC 169 paragraphs 158 and 156 In considering the decision to make a deportation order, the Secretary of State, the adjudicator and the Tribunal must take into account all relevant factors known to the Secretary of State including those specified in paragraph 156. The factors specified are: "age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct, and employment record; domestic circumstances the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the person's behalf." The Secretary of State did not indicate specifically the weight he attached to these factors and as the Tribunal had said a number of times it would at least be desirable that in the explanatory statement a paragraph is included indicating how the factors apply to the particular case and how each has been considered. The adjudicator did consider the factors and having heard Mr Curwen and Mr Drabu on their relevance it is for us now to consider them. The appellants' age (now known to be 27) is neutral. She has been in the country since the age of 18 and we take Mr Drabu's point that these are important years in her development. However, we cannot ignore the fact that, to put it at the most favourable to the appellant, she made no attempt to regularise her own status after her initial leave ended and in our view should have been aware of doubts about the basis of her leave to remain at the latest by February 1983. On the factors known to the Secretary of State the strength of the appellant's connection with this country were few -- perhaps largely because the appellant had made no effort to contact the Home Office. There is nothing in the appellant's history, character, conduct and employment record which would take the case out of the normal course. We bear in mind that she apparently engaged in employment contrary to the terms of her leave and we balance against that the fact that she seems never to have been a burden on the State. The appellant's domestic circumstances, as known to the Secretary of State, were simply that she was a party (albeit innocent) to a bigamous marriage, and that there had been no response to a letter requesting that she regularise her position. Further, as we have said, we think that the adjudicator's doubts about whether the marriage was one of convenience were justified and in any event by the date of the decision the "marriage" was clearly over (that evidence being admissible as the Secretary of State knew of the marriage.) In so far as the marriage is relevant to the decision to make a deportation order it is therefore only as a possible ground for the appellant's failure to regularise her immigration status. The compassionate circumstances applicable to the appellant go largely to the impression which she maintained she had gathered both from the marriage itself (ie that it gave her the right to remain) and from the police interviews (ie that she could stay here). Even assuming (without deciding) that it was reasonable for her to remain passive in respect to her immigration status once married, we cannot accept, as we have indicated, that at the latest by February 1983 it was reasonable to continue to do nothing. As from that date, in our view, she must have had doubts about the validity of her marriage and therefore, as we have said, the possibility that her right to remain no longer existed. Connected with her belief with her right to stay and its reasonableness is first the delay of the Home Ofice in pursuing the question of the appellant's immigration status secondly the sending of the letter in January 1984 to an address from which the appellant now says she had moved. We do not think that bearing in mind the developments in regard to the appellant's husband that any delay was such as to lead the appellant into believing that all she had to do was to remain without contacting the Home Office -- even if that belief was ever reasonably held. As to the sending of the "warning" letter, it could be argued that in the circumstances the Secretary of State would have been acting properly in simply taking the decision to make the deportation order without any warning. However, the sending of the letter illustrates a fair approach -- a reminder to the appellant to regularise her status. Mr Drabu argued that following the police interviews the Secretary of State should have known that the appellant had a new address (ie that of Mr Hobson). We cannot say that on the evidence the Secretary of State knew of any address other than that to which the letter was sent and that in sending it he was in effect by his own act not issuing an effective warning. We are prepared to accept that the appellant did not receive it and we take this into account in weighing public interest against the compassionate circumstances applicable to her. In weighing the relevant factors in this case we start with the presumption that deportation is the normal course when a person overstays and that the public interest is founded on that principle. In favour of the appellant's case being made an exception he has urged that she had no knowledge that she was an overstayer, that the marriage to Mohammad Hanif was a factor in that it encouraged that belief and that it was not shown to be a marriage of convenience and in effect that the Secretary of State did not take due care in ensuring that the appellant received the warning letter. In our opinion, the factors urged in the appellant's favour do not outweigh the normal course. As we have said, the responsibility was always on the appellant to ensure that she had the right to stay here and at most any belief that she had such a right was linked to the marriage to Mohammad Hanif. Once the validity of the marriage was questioned the appellant's responsibility became even more pronounced. There is no evidence that the Secretary of State did not act fairly and we see no reason to conclude that the warning letter of 19 January 1984 was not sent to the address most likely to reach the appellant. Once again it was the appellant's responsibility to ensure that the Home Office knew where she was. Looking at the factors known to the Secretary of State at the date of decision, the appellant's leave to remain as a student had terminated some five years before, her marriage had never been valid and as we now know had effectively ended and the appellant had made no effort to communicate to the Home Office or regularise her status. In our view the decision to make the deportation order was justified and was in accordance with the law and immigration rules. No argument was addressed to us as to the proposal to make the removal directions. The appeals against the decision to make the deportation and the removal directions are dismissed.DISPOSITION:
Appeals dismissedSOLICITORS:
United Kingdom Immigrants Advisory ServiceDisclaimer: Crown Copyright
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